Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 6 contracts
Samples: Agreement and Plan of Reorganization and Merger (Palex Inc), Agreement and Plan of Reorganization and Merger (Palex Inc), Agreement and Plan of Reorganization and Merger (Palex Inc)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled promptly to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume the defense of the matter. In the event If the Indemnifying Party shall fail fails to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same same, and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, including reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided. However, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Doughties Foods Inc), Asset Purchase Agreement (Doughties Foods Inc), Asset Purchase Agreement (Doughties Foods Inc)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim, or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Indemnified Party shall be entitled have the option of electing to defend, contest or otherwise protect against any such matter at its own cost suit, action, investigation, claim or proceeding, with the costs and expenseexpenses of such defense to be borne by the Indemnifying Party, and the Indemnified Indemnifying Party must cooperate in any such defense or other action. The Indemnified Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Indemnified Party shall be entitled to control the defense unless otherwise determined by the Indemnified Party has relieved or if the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Indemnified Party fails to assume defense of the matter. In the event the Indemnifying Indemnified Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Indemnifying Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof thereof, and recover the reasonable cost thereof from the Indemnifying Party shall pay all costs thereof, including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Indemnifying Party must send a written notice to the Indemnifying Indemnified Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Indemnified Party may reject, in its reasonable judgment, within ten (10) 30 days of receipt of such notice. Failure to reject such notice within such ten (10) 30-day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party upon the election of the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such mattersmatters upon the election of the Indemnified Party, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Internet Law Library Inc), Stock Purchase Agreement (Internet Law Library Inc), Stock Purchase Agreement (Internet Law Library Inc)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Saba Petroleum Co), Stock Purchase Agreement (Roseland Oil & Gas Inc), Partnership Purchase Agreement (Waste Recovery Inc)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled promptly to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and including the Indemnified Party must cooperate right to invoke any arbitration proceeding available in any such defense or other actionthe dispute. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or matter. If the Indemnifying Party does not notify the Indemnified Party within 30 days after the receipt of a notice, pursuant to Section 11.5 of this Agreement, that it elects to undertake the defense thereof and fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof thereof, with counsel of its choosing, and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, including reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided. However, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such mattersmatters after the Indemnified Party has began the defense, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partythereof.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Fullnet Communications Inc), Asset Purchase Agreement (Fullnet Communications Inc)
Right to Defend. Upon receipt of If the facts giving rise to any such indemnification shall involve any actual claim or demand by any third party against an OHGI Indemnified Party or Stockholder Indemnified Party (referred to herein as an “Indemnified Party”), then the Indemnified Party will give prompt written notice of any matter such claim to the indemnifying party, which notice shall set forth in reasonable detail the nature, basis and amount of such claim (the “Notice of Third Party Claim”). It is a condition precedent to the applicable indemnifying party’s obligation to indemnify the applicable Indemnified Party for which indemnification might be claimed such claim that such Indemnified Party timely provide to such indemnifying party the applicable Notice of Third Party Claim, provided that the failure to provide such Notice of Third Party Claim shall only relieve such indemnifying party of its or his obligation to indemnify for such claim only to the extent that such indemnifying party has been prejudiced by an such Indemnified Party, ’s failure to give the Indemnifying Notice of Third Party shall be entitled Claim as required. The indemnifying party receiving such Notice of Third Party Claim may (without prejudice to defend, contest or otherwise protect against the right of any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by through counsel of its own choosing, but the Indemnifying Party be entitled to control ) undertake the defense unless of such claims or actions at its expense with counsel chosen and paid by its giving written notice (the “Election to Defend”) to the Indemnified Party has relieved within thirty (30) days after the Indemnifying date the Notice of Third Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofClaim is deemed received; provided, however, that the indemnifying party receiving the Notice of Third Party Claim may not settle such claims or actions without the consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed, except if the sole relief provided is monetary damages to be borne solely by the indemnifying party; and, provided further, if the defendants in any action include both the indemnifying party and the Indemnified Party, and the Indemnified Party must send shall have reasonably concluded that counsel selected by the indemnifying party has a written notice conflict of interest because of the availability of different or additional defenses to the Indemnifying parties, the Indemnified Party of any such proposed settlement or compromise, which settlement or compromise shall cooperate in the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt defense of such notice. Failure claim and shall make available to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The the indemnifying party pertinent information under its control relating thereto, but the Indemnified Party shall have the right to effect a settlement retain its own counsel and to control its defense and shall be entitled to be reimbursed for all reasonable costs and expenses incurred in such separate defense. In no event will the provisions of this Article reduce or compromise over lessen the objection obligations of the Indemnifying Party; providedparties under this Article, that if prior to the expiration of the foregoing thirty (i30) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Partyday notice period, the Indemnified Party waives furnishing the Notice of Third Party Claim responds to a third-party claim if such action is reasonably required to minimize damages or avoid a forfeiture or penalty or because of any right to indemnity thereforrequirements imposed by law. If the Indemnifying indemnifying party receiving the Notice of Third Party undertakes Claim does not duly give the defense of Election to Defend as provided above, then it will be deemed to have irrevocably waived its right to defend or settle such mattersclaims, but it will have the right, at its expense, to attend, but not otherwise to participate in, proceedings with such third parties; and if the indemnifying party does duly give the Election to Defend, then the Indemnified Party shall notgiving the Notice of Third Party Claim will have the right at its expense, so long as the Indemnifying Party does to attend, but not abandon the defense thereofotherwise to participate in, such proceedings. The parties to this Agreement will not be entitled to recover from dispute the Indemnifying Party amount of any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the Damages (including reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partyattorney’s fees and expenses) related to such third-party claim resolved as provided above.
Appears in 2 contracts
Samples: Exchange Agreement (One Horizon Group, Inc.), Exchange Agreement (One Horizon Group, Inc.)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; , provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Showbiz Pizza Time Inc), Agreement and Plan of Merger (International Isotopes Inc)
Right to Defend. Upon receipt of a notice of any matter for which indemnification might be claimed by an Indemnified Partya claim under this section 5 (a "Claim Notice"), the party obliged to provide an indemnity under this Agreement (the "Indemnifying Party Party") shall be entitled to defendpromptly assume the defense of, and contest or otherwise protect against any against, such matter suit, action investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The other party (the "Indemnified Party Party") shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or in the Indemnifying Party fails to assume defense of event set out in the matternext sentence. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in within 10 days of the receipt of a timely manner Claim Notice against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and and, with the prior written approval of the Indemnifying Party, make any compromise or settlement thereof and subject to the limitations set out in sections 5.2 or 5.3, as the case may be, recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and including all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, thereof which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of was approved by the Indemnifying Party; provided. However, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 2 contracts
Samples: Share Purchase Agreement (Spectre Industries Inc), Share Purchase Agreement (Spectre Industries Inc)
Right to Defend. Upon receipt of An Indemnitee shall provide notice to the Indemnifying Party within thirty (30) Days after receiving notice of the commencement of any matter for legal action or of any claims or threatened claims against such Indemnitee in respect of which indemnification might may be claimed sought pursuant to the foregoing provisions of this Article 24 or any other provision of this Agreement providing for an indemnity (such notice, a “Claim Notice”), and the Indemnifying Party shall thereafter promptly elect whether to assume such defense. The Indemnitee’s failure to give, or tardiness in giving, such Claim Notice will reduce the liability of the Indemnifying Party only by an Indemnified the amount of damages attributable and prejudicial to such failure or tardiness, but shall not otherwise relieve the Indemnifying Party from any liability that it may have under this Agreement. If the Indemnifying Party assumes the defense, (i) it shall retain counsel reasonably acceptable to the Indemnitee and (ii) the Indemnitee shall have the right to employ separate counsel in any such proceeding and to participate in (but not control) the defense of such claim, and the fees and expenses of such special counsel shall be borne by the Indemnitee unless the Indemnifying Party agrees otherwise or except as set forth in the following sentence. If the Indemnifying Party does not assume the defense of the Indemnitee, does not diligently prosecute such defense, or if a conflict (including any actual or potential differing of interest between the Parties) precludes counsel for Indemnifying Party from providing the defense, then the Indemnitee shall have the absolute right to control the defense of such claim and the fees and expenses of such defense, including reasonable attorneys’ fees of the Indemnitee’s counsel, reasonable costs of investigation, court costs and other costs of suit, arbitration, dispute resolution or other proceeding, and any reasonable amount determined to be owed by Indemnitee pursuant to such claim, shall be borne by the Indemnifying Party, provided that the Indemnifying Party shall be entitled, at its expense, to participate in (but not control) such defense, and provided further that the Indemnifying Party shall reimburse the Indemnitee on a monthly basis for such costs and expenses. Subject to all of the foregoing provisions of this Section 24.5 as between the Parties, the Indemnifying Party shall be entitled control the settlement of all claims, in coordination with any insurer as required under the applicable insurance policies in Article 23 as to defendwhich it has assumed the defense; provided that to the extent the Indemnifying Party, contest or otherwise protect against any in relation to such matter at its own cost insurer, controls settlement: (a) such settlement shall include a dismissal of the claim and expense, and an explicit release from the Indemnified Party must cooperate in any party bringing such defense claim or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel proceedings of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event all Indemnitees; and (b) the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against not conclude any matter, settlement without the Indemnified Party shall have prior approval of the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromiseIndemnitee, which settlement approval shall not be unreasonably withheld or compromise delayed; provided further that, except as provided in the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of preceding sentence concerning the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith ’s failure to assume or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes diligently prosecute the defense of such mattersany claim, no Indemnitee seeking reimbursement pursuant to the Indemnified Party shall notforegoing indemnity shall, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with without the prior written consent of the Indemnifying Party, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, claim, suit, investigation or proceeding for which indemnity is afforded hereunder unless such Indemnitee reasonably believes that the matter in question involves potential criminal liability against such Indemnitee. Other than as provided in this Section 24.5, the Indemnifying Party shall not settle any claim without the prior written approval of the Indemnitee, which approval shall not be unreasonably withheld, delayed or conditioned. The Indemnitee shall provide reasonable assistance to the Indemnifying Party when the Indemnifying Party so requests, at the Indemnifying Party’s expense, in connection with such legal action or claim, including executing any powers-of-attorney or other documents required by the Indemnifying Party with regard to the defense or indemnity obligations.
Appears in 2 contracts
Samples: Build Transfer Agreement, Procurement and Construction Agreement
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. (a) The Indemnified Party indemnifying party shall have the right, but not upon written notice delivered to the obligationindemnified party within twenty (20) days after receipt of a Notice of Claim, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control assume the defense unless of such matter set forth in such Notice of Claim, including the Indemnified Party has relieved the Indemnifying Party from liability with respect employment of counsel reasonably satisfactory to the particular matter indemnified party and the payment of the fees and disbursements of such counsel. In the event, however, that the indemnifying party declines or the Indemnifying Party fails to assume the defense of the matter. In matter or to employ counsel reasonably satisfactory to the event indemnified party, in either case within such twenty (20) day period, then such indemnified party may employ counsel to represent or defend it in any such action or proceeding and the Indemnifying Party indemnifying party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover pay the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, fees and disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofcounsel as incurred; provided, however, that the Indemnified Party must send a written notice indemnifying party shall not be required to pay the Indemnifying Party fees and disbursements of more than one counsel for all indemnified parties in any such proposed settlement jurisdiction in any single action or compromiseproceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, which settlement the indemnified party or compromise the Indemnifying Party may rejectindemnifying party, in its reasonable judgment, within ten (10) days of receipt whichever is not assuming the defense of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party action, shall have the right to effect a settlement participate in such matter and to retain its own counsel at such party's own expense. The indemnifying party or compromise over the objection indemnified party, as the case may be, shall at all times use reasonable efforts to keep the indemnifying party or the indemnified party, as the case may be, reasonably apprised of the Indemnifying Party; provided, that if (i) status of the Indemnifying Party is contesting such claim defense of any action the defense of which they are maintaining and to cooperate in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right with each other with respect to indemnity therefor. If the Indemnifying Party undertakes the defense of any such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partyaction.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Central Garden & Pet Company), Agreement and Plan of Reorganization (Pennington Brooks Iii)
Right to Defend. Upon receipt of If the facts giving rise to any such indemnification shall involve any actual claim or demand by any third party against a Buyer Indemnified Party or Shareholder Indemnified Party (referred to herein as an "Indemnified Party"), then the Indemnified Party will give prompt written notice of any matter such claim to the indemnifying party, which notice shall set forth in reasonable detail the nature, basis and amount of such claim (the "Notice of Third Party Claim"). It is a condition precedent to the applicable indemnifying party's obligation to indemnify the applicable Indemnified Party for which indemnification might be claimed such claim that such Indemnified Party timely provide to such indemnifying party the applicable Notice of Third Party Claim, provided that the failure to provide such Notice of Third Party Claim shall only relieve such indemnifying party of its or his obligation to indemnify for such claim only to the extent that such indemnifying party has been prejudiced by an such Indemnified Party, 's failure to give the Indemnifying Notice of Third Party shall be entitled Claim as required. The indemnifying party receiving such Notice of Third Party Claim may (without prejudice to defend, contest or otherwise protect against the right of any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by through counsel of its own choosing, but the Indemnifying Party be entitled to control ) undertake the defense unless of such claims or actions at its expense with counsel chosen and paid by its giving written notice (the "Election to Defend") to the Indemnified Party has relieved within thirty (30) days after the Indemnifying date the Notice of Third Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofClaim is deemed received; provided, however, that the indemnifying party receiving the Notice of Third Party Claim may not settle such claims or actions without the consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed, except if the sole relief provided is monetary damages to be borne solely by the indemnifying party; and, provided further, if the defendants in any action include both the indemnifying party and the Indemnified Party, and the Indemnified Party must send shall have reasonably concluded that counsel selected by the indemnifying party has a written notice conflict of interest because of the availability of different or additional defenses to the Indemnifying parties, the Indemnified Party of any such proposed settlement or compromise, which settlement or compromise shall cooperate in the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt defense of such notice. Failure claim and shall make available to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The the indemnifying party pertinent information under its control relating thereto, but the Indemnified Party shall have the right to effect a settlement its own counsel and to control its defense and shall be entitled to be reimbursed for all reasonable costs and expenses incurred in such separate defense. In no event will the provisions of this Article reduce or compromise over lessen the objection obligations of the Indemnifying Party; providedparties under this Article, that if prior to the expiration of the foregoing thirty (i30) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Partyday notice period, the Indemnified Party waives furnishing the Notice of Third Party Claim responds to a third party claim if such action is reasonably required to minimize damages or avoid a forfeiture or penalty or because of any right to indemnity thereforrequirements imposed by law. If the Indemnifying indemnifying party receiving the Notice of Third Party undertakes Claim does not duly give the defense of Election to Defend as provided above, then it will be deemed to have irrevocably waived its right to defend or settle such mattersclaims, but it will have the right, at its expense, to attend, but not otherwise to participate in, proceedings with such third parties; and if the indemnifying party does duly give the Election to Defend, then the Indemnified Party shall notgiving the Notice of Third Party Claim will have the right at its expense, so long as the Indemnifying Party does to attend, but not abandon the defense thereofotherwise to participate in, such proceedings. The parties to this Agreement will not be entitled to recover from dispute the Indemnifying Party amount of any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the Damages (including reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partyattorney's fees and expenses) related to such third party claim resolved as provided above.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Gales Industries Inc), Stock Purchase Agreement (Ashlin Development Corp)
Right to Defend. Upon receipt of notice of If the facts giving rise to any matter such claim for which indemnification might be claimed involve any actual or threatened claim or demand by an any third party against the Indemnified Party, the Indemnifying Party shall be entitled (without prejudice to defend, contest or otherwise protect against any such matter at its own cost and expense, and the right of the Indemnified Party must cooperate to participate in any the defense of such claim or demand at its expense through counsel of its own choosing) to assume the defense of such claim or other action. The demand in the name of the Indemnified Party shall have at the right, but not the obligation, to participate at its own Indemnifying Party's expense in defense thereof by and through counsel of its own choosing, but which counsel shall be reasonably satisfactory to the Indemnified Party, if it gives written notice to the Indemnified Party within forty-five (45) days after receipt of the Notice of Claim that the Indemnifying Party be entitled intends to control assume the defense unless of such claim and acknowledges its liability to indemnify the Indemnified Party has relieved the Indemnifying Party for any losses resulting from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofclaim; provided, however, that the Indemnified Party must send a written notice to if the Indemnifying Party does not elect to assume the defense of any such proposed settlement or compromiseclaim, which settlement or compromise then (a) the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement participate in the defense of such claim or compromise over demand at its expense through counsel of its own choosing, provided the objection Indemnified Party shall control the defense of such claim, (b) the Indemnified Party may settle any such claim without the consent of the Indemnifying Party; provided, that if (i) however, the Indemnifying Party is contesting may not settle any such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with without the prior written consent of the Indemnified Party; and (c) Section 9.5 hereof shall be inapplicable. Whether or not the Indemnifying PartyParty does choose to so defend such claim, the parties hereto shall cooperate in the defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be requested in connection therewith. To the extent Parent is the Indemnified Party for any actual or threatened claim or demand by any third party, Parent shall have the right to control the prosecution of any counterclaim or right related to such a claim or demand, provided that Parent agrees to reasonably cooperate with the Company or Shareholder with respect to the prosecution of such counterclaim or right.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Packaged Ice Inc), Agreement and Plan of Merger (Packaged Ice Inc)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have Notwithstanding the right to effect a settlement or compromise over the objection of the Indemnifying Party; providedabove, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any may effect a settlement or compromise over the objection of the Indemnifying party by delivery to the Indemnifying party of a written waiver of the right to indemnity thereforindemnification for those matters specifically at issue. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 2 contracts
Samples: Purchase Agreement (Cubic Energy Inc), Purchase Agreement (Wallen Calvin Iii)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding ("Action") for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter Action at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail fails to defend, contest or otherwise protect in a timely manner against any mattersuch Action, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding Action or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) thirty days of receipt of such notice. Failure to reject such notice within such ten (10) thirty day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Citadel Technology Inc), Agreement and Plan of Reorganization (Citadel Technology Inc)
Right to Defend. Upon receipt of If the facts giving rise to any such indemnification shall involve any actual claim or demand by any third party against a Buyer Indemnified Party or Shareholder Indemnified Party (referred to herein as an “Indemnified Party”), then the Indemnified Party will give prompt written notice of any matter such claim to the indemnifying party, which notice shall set forth in reasonable detail the nature, basis and amount of such claim (the “Notice of Third Party Claim”). It is a condition precedent to the applicable indemnifying party’s obligation to indemnify the applicable Indemnified Party for which indemnification might be claimed such claim that such Indemnified Party timely provide to such indemnifying party the applicable Notice of Third Party Claim, provided that the failure to provide such Notice of Third Party Claim shall relieve such indemnifying party of its or his obligation to indemnify for such claim only to the extent that such indemnifying party has been prejudiced by an such Indemnified Party, ’s failure to give the Indemnifying Notice of Third Party shall be entitled Claim as required. The indemnifying party receiving such Notice of Third Party Claim may (without prejudice to defend, contest or otherwise protect against the right of any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by through counsel of its own choosing, but the Indemnifying Party be entitled to control ) undertake the defense unless of such claims or actions at its expense with counsel chosen and paid by it by giving written notice (the “Election to Defend”) to the Indemnified Party has relieved within thirty (30) days after the Indemnifying date the Notice of Third Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofClaim is deemed received; provided, however, that the indemnifying party receiving the Notice of Third Party Claim may not settle such claims or actions without the consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed, except if the sole relief provided is monetary damages to be borne solely by the indemnifying party; and, provided further, if the defendants in any action include both the indemnifying party and the Indemnified Party, and the Indemnified Party must send shall have reasonably concluded that counsel selected by the indemnifying party has a written notice conflict of interest because of the availability of different or additional defenses to the Indemnifying parties, the Indemnified Party of any such proposed settlement or compromise, which settlement or compromise shall cooperate in the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt defense of such notice. Failure claim and shall make available to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The the indemnifying party pertinent information under its control relating thereto, but the Indemnified Party shall have the right to effect a settlement retain its own counsel and to control its defense and shall be entitled to be reimbursed for all reasonable costs and expenses incurred in such separate defense. In no event will the provisions of this Article reduce or compromise over lessen the objection obligations of the Indemnifying Party; providedparties under this Article, that if prior to the expiration of the foregoing thirty (i30) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Partyday notice period, the Indemnified Party waives furnishing the Notice of Third Party Claim responds to a third party claim if such action is reasonably required to minimize damages or avoid a forfeiture or penalty or because of any right to indemnity thereforrequirements imposed by law. If the Indemnifying indemnifying party receiving the Notice of Third Party undertakes Claim does not duly give the defense of Election to Defend as provided above, then it will be deemed to have irrevocably waived its right to defend or settle such mattersclaims, but it will have the right, at its expense, to attend, but not otherwise to participate in, proceedings with such third parties; and if the indemnifying party does duly give the Election to Defend, then the Indemnified Party shall notgiving the Notice of Third Party Claim will have the right at its expense, so long as the Indemnifying Party does to attend, but not abandon the defense thereofotherwise to participate in, such proceedings. The parties to this Agreement will not be entitled to recover from dispute the Indemnifying Party amount of any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the Damages (including reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partyattorney’s fees and expenses) related to such third party claim resolved as provided above.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Event Cardio Group Inc.), Stock Purchase Agreement (Event Cardio Group Inc.)
Right to Defend. Upon receipt of notice of If the facts giving rise to any matter such claim for which indemnification might be claimed involve any actual or threatened claim or demand by an any third party against the Indemnified Party, the Indemnifying Party shall be entitled (without prejudice to defend, contest or otherwise protect against any such matter at its own cost and expense, and the right of the Indemnified Party must cooperate to participate in any the defense of such claim or demand at its expense through counsel of its own choosing) to assume the defense of such claim or other action. The demand in the name of the Indemnified Party shall have at the right, but not the obligation, to participate at its own Indemnifying Party's expense in defense thereof by and through counsel of its own choosing, but which counsel shall be reasonably satisfactory to the Indemnified Party, if it gives written notice to the Indemnified Party within forty-five (45) days after receipt of the Notice of Claim that the Indemnifying Party be entitled intends to control assume the defense unless of such claim and acknowledges its liability to indemnify the Indemnified Party has relieved the Indemnifying Party for any losses resulting from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofclaim; provided, however, that the Indemnified Party must send a written notice to if the Indemnifying Party does not elect to assume the defense of any such proposed settlement or compromiseclaim, which settlement or compromise then (a) the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement participate in the defense of such claim or compromise over demand at its expense through counsel of its own choosing, provided the objection Indemnified Party shall control the defense of such claim, (b) the Indemnified Party may settle any such claim without the consent of the Indemnifying Party; provided, that if (i) however, the Indemnifying Party is contesting may not settle any such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with without the prior written consent of the Indemnified Party; and (c) Section 9.5 hereof shall be inapplicable. Whether or not the Indemnifying PartyParty does choose to so defend such claim, the parties hereto shall cooperate in the defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be requested in connection therewith. To the extent Sellers are the Indemnified Parties for any actual or threatened claim or demand by any third party, Sellers shall have the right to control the prosecution of any counterclaim or right related to such a claim or demand, provided that Sellers agree to reasonably cooperate with Buyer with respect to the prosecution of such counterclaim or right.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Packaged Ice Inc), Stock Purchase Agreement (Packaged Ice Inc)
Right to Defend. Upon receipt of An Indemnitee shall provide notice to the Indemnifying Party within thirty (30) Days after receiving notice of the commencement of any matter for legal action or of any claims or threatened claims against such Indemnitee in respect of which indemnification might may be claimed sought pursuant to the foregoing provisions of this Article 19 or any other provision of this Agreement providing for an indemnity (such notice, a “Claim Notice”), and the Indemnifying Party shall thereafter promptly elect whether to assume such defense. The Indemnitee’s failure to give, or tardiness in giving, such Claim Notice will reduce the liability of the Indemnifying Party only by an Indemnified the amount of damages attributable and prejudicial to such failure or tardiness, but shall not otherwise relieve the Indemnifying Party from any liability that it may have under this Agreement. If the Indemnifying Party assumes the defense, (i) it shall retain counsel reasonably acceptable to the Indemnitee and (ii) the Indemnitee shall have the right to employ separate counsel in any such proceeding and to participate in (but not control) the defense of such claim, and the fees and expenses of such special counsel shall be borne by the Indemnitee unless the Indemnifying Party agrees otherwise or except as set forth in the following sentence. If the Indemnifying Party does not assume the defense of the Indemnitee, does not diligently prosecute such defense, or if a conflict (including any actual or potential differing of interest between the Parties) precludes counsel for Indemnifying Party from providing the defense, then the Indemnitee shall have the absolute right to control the defense of such claim and the fees and expenses of such defense, including reasonable attorneys’ fees of the Indemnitee’s counsel, reasonable costs of investigation, court costs and other costs of suit, arbitration, dispute resolution or other proceeding, and any reasonable amount determined to be owed by Indemnitee pursuant to such claim, shall be borne by the Indemnifying Party, provided that the Indemnifying Party shall be entitled, at its expense, to participate in (but not control) such defense, and provided further that the Indemnifying Party shall reimburse the Indemnitee on a monthly basis for such costs and expenses. Subject to all of the foregoing provisions of this Section 19.5 as between the Parties, the Indemnifying Party shall be entitled control the settlement of all claims, in coordination with any insurer as required under the applicable insurance policies in Article 18 as to defendwhich it has assumed the defense; provided that to the extent the Indemnifying Party, contest or otherwise protect against any in relation to such matter at its own cost insurer, controls settlement: (a) such settlement shall include a dismissal of the claim and expense, and an explicit release from the Indemnified Party must cooperate in any party bringing such defense claim or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel proceedings of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event all Indemnitees; and (b) the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against not conclude any matter, settlement without the Indemnified Party shall have prior approval of the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromiseIndemnitee, which settlement approval shall not be unreasonably withheld or compromise delayed; provided further that, except as provided in the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of preceding sentence concerning the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith ’s failure to assume or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes diligently prosecute the defense of such mattersany claim, no Indemnitee seeking reimbursement pursuant to the Indemnified Party shall notforegoing indemnity shall, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with without the prior written consent of the Indemnifying Party, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, claim, suit, investigation or proceeding for which indemnity is afforded hereunder unless such Indemnitee reasonably believes that the matter in question involves potential criminal liability against such Indemnitee. Other than as provided in this Section 19.5, the Indemnifying Party shall not settle any claim without the prior written approval of the Indemnitee, which approval shall not be unreasonably withheld, delayed or conditioned. The Indemnitee shall provide reasonable assistance to the Indemnifying Party when the Indemnifying Party so requests, at the Indemnifying Party’s expense, in connection with such legal action or claim, including executing any powers-of-attorney or other documents required by the Indemnifying Party with regard to the defense or indemnity obligations.
Appears in 2 contracts
Samples: Build Transfer Agreement, Engineering, Procurement and Construction Agreement
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; , provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity indemnity. therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.the
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action, including the assertion of any counterclaim or crossclaim. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event If the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, including reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) 30 days of its receipt of such written notice. Failure A failure by the Indemnifying Party to reject such notice settlement or compromise within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified PartyParty and the Indemnifying Party has a net worth in excess of the amount being sought, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying PartyParty and other than such amounts incurred where a conflict of interest is reasonably determined to exist by the Indemnified Party such that more than one legal counsel is reasonably needed.
Appears in 1 contract
Right to Defend. Upon receipt If any claim is brought against a Party, then the other Party shall be entitled to participate in, and, unless a conflict of notice interest between the Parties may exist with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnitee in accordance with this Section 24.5. An Indemnitee shall provide Notice to the Indemnifying Party, within *** after receiving Notice of the commencement of any matter for legal action or of any claims or threatened claims against such Indemnitee in respect of which indemnification might may be claimed sought pursuant to the foregoing provisions of this Article 24 or any other provision of this Agreement providing for an indemnity (such notice, a “Claim Notice”). The Indemnitee's failure to give, or tardiness in giving, such Claim Notice will reduce the liability of the Indemnifying Party only by an Indemnified the amount of damages attributable and prejudicial to such failure or tardiness, but shall not otherwise relieve the Indemnifying Party from any liability that it may have under this Agreement. If the Indemnifying Party assumes the defense, the Indemnitee shall have the right to employ separate counsel in any such proceeding and to participate in (but not control) the defense of such claim, but the fees and expenses of such counsel shall be borne by the Indemnitee unless the Indemnifying Party agrees otherwise; provided that if the named parties to any such proceeding (including any impleaded parties) include both the Indemnitee and the Indemnifying Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost requires that the same counsel represent both the Indemnitee and expensethe Indemnifying Party, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof representation of both parties by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise counsel would be inappropriate due to actual or settlement thereof and recover potential differing interests between them, then the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party Indemnitee shall have the right to effect a settlement or compromise over retain its own counsel at the objection cost and expense of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes does not assume the defense of the Indemnitee, does not diligently prosecute such defense, or if a conflict precludes counsel for Indemnifying Party from providing the defense, then the Indemnitee shall have the absolute right to control the defense of such mattersclaim and the fees and expenses of such defense, including reasonable attorneys' fees of the Indemnified Party Indemnitee's counsel, reasonable costs of investigation, court costs and other costs of suit, arbitration, dispute resolution or other proceeding, and any reasonable amount determined to be owed by Indemnitee pursuant to such claim, shall notbe borne by the Indemnifying Party, so long as provided that the Indemnifying Party does shall be entitled, at its expense, to participate in (but not abandon the control) such defense thereof, be entitled to recover from and the Indemnifying Party shall reimburse the Indemnitee on a monthly basis for such costs and expenses. Subject to all of the foregoing provisions of this Section 24.5 as between the Parties, the Indemnifying Party shall control the settlement of all claims, in coordination with any legal insurer as required under the applicable insurance policies in Article 23 as to which it has assumed the defense; provided that to the extent the Indemnifying Party, in relation to such insurer, controls settlement: (a) such settlement shall include a dismissal of the claim and an explicit release from the party bringing *** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. such claim or other expenses subsequently incurred by proceedings of all Indemnitees; and (b) the Indemnified Indemnifying Party shall not conclude any settlement without the prior approval of the Indemnitee, which approval shall not be unreasonably withheld or delayed; provided further that except as provided in connection with the preceding sentence concerning the Indemnifying Party's failure to assume or to diligently prosecute the defense thereof other than of any claim, no Indemnitee seeking reimbursement pursuant to the reasonable costs of investigation undertaken by the Indemnified Party with foregoing indemnity shall, without the prior written consent of the Indemnifying Party, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, claim, suit, investigation or proceeding for which indemnity is afforded hereunder unless such Indemnitee reasonably believes that the matter in question involves potential criminal liability against such Indemnitee. Other than as provided in this Section 24.5, Indemnifying Party shall not settle any claim without the prior written approval of the Indemnitee, which approval shall not be unreasonably withheld, delayed or conditioned. The Indemnitee shall provide reasonable assistance to the Indemnifying Party when the Indemnifying Party so requests, at the Indemnifying Party's expense, in connection with such legal action or claim, including executing any powers-of-attorney or other documents required by the Indemnifying Party with regard to the defense or indemnity obligations.
Appears in 1 contract
Samples: Engineering, Procurement and Construction Agreement (Sunpower Corp)
Right to Defend. Upon receipt of If a claim for indemnification shall involve a claim or demand by a third party against a Horizon Indemnified Party or a Xxxxxxx Indemnified Party (referred to in this Section as an “Indemnified Party”), the Indemnified Party will give notice of any matter for the claim to the other party (the “Indemnifying Party”), which indemnification might be claimed by an Indemnified Partyshall detail the nature, basis and amount of the claim (the “Notice of Third Party Claim”). The failure to provide a Notice of Third Party Claim shall only relieve the Indemnifying Party shall be entitled of its obligation to defend, contest or otherwise protect against any indemnify for such matter at its own cost and expense, and claim to the extent that it has been prejudiced by the failure to give the Notice of Third Party Claim. The Indemnifying Party may (without prejudice to the right of an Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by through counsel of its own choosing) undertake the defense of such claims at its expense with counsel chosen and paid by it by giving notice (the “Election to Defend”) to the Indemnified Party within thirty (30) days after the date the Notice of Third Party Claim is deemed received; provided, but however, that the Indemnifying Party may not settle such claims without the consent of the Indemnified Party, which consent will not be entitled unreasonably withheld or delayed, except if the sole relief provided is monetary damages to control be borne by the defense unless Indemnifying Party; and, provided further, if the defendants in any action include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has relieved shall have reasonably concluded that counsel selected by the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense party has a conflict of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matterinterest, the Indemnified Party shall have the right, but not the obligation, thereafter right to defend, contest or otherwise protect against the same participate in such defense and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements fees and all amounts paid as a result expenses of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that counsel to the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromiseconsidered “Damages.”. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim cooperate in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the any claim and make available pertinent information under its control If an Indemnifying Party does not abandon give the defense thereofElection to Defend as provided above, it will be entitled deemed to recover from the Indemnifying Party any legal have irrevocably waived its right to defend or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partysettle such claims.
Appears in 1 contract
Right to Defend. Upon receipt In the event that the Indemnitor notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such Claim, then, except as hereinafter provided, the Indemnitor shall have the right to defend the Indemnified Party by appropriate proceedings, which proceedings shall be promptly settled or prosecuted by it to a final conclusion in such a manner as to avoid any risk of notice the Indemnified Party becoming subject to Damages for any other matter; provided, however, the Indemnitor shall not, without the prior written consent of any matter for which indemnification might be claimed by an the Indemnified Party, consent to the Indemnifying Party shall be entitled to defend, contest or otherwise protect entry of any judgment against any such matter at its own cost and expense, and the Indemnified Party must cooperate or enter into any settlement or compromise which is in the nature of an injunction or specific performance which admits fault by the Indemnified Party or which 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 satisfactory, from all liability in respect of such Claim. If the Indemnified Party desires to participate in, but not control, any such defense or other action. The Indemnified Party shall have the rightsettlement, but not the obligation, to participate it may do so at its own expense sole cost and expense. Notwithstanding the foregoing, if, in defense thereof by counsel the reasonable opinion of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved Party, any such Claim or resolution of any such Claim involves an issue or matter which could have a materially adverse effect on the Indemnifying Party from liability with respect to the particular matter business, operations, assets, properties or the Indemnifying Party fails to assume defense prospects of the matter. In Indemnified Party, including without limitation the event administration of the Indemnifying Party shall fail to defendtax returns and responsibilities under the tax laws of the Indemnified Party, contest or otherwise protect in a timely manner against any matter, then the Indemnified Party shall have the right, but not right to control the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise defense or settlement thereof of any such Claim, and recover its reasonable costs and expenses shall be included as part of the reasonable cost thereof from indemnification obligation of the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofIndemnitor hereunder; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of shall not settle any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with Claim without the prior written consent of the Indemnifying PartyIndemnitor, which consent shall not be unreasonably withheld, delayed or conditioned. If the Indemnified Party should elect to exercise such right, the Indemnitor shall have the right to participate in, but not control, the defense or settlement of such Claim at its sole cost and expense.
Appears in 1 contract
Samples: Software Distribution Agreement (Axeda Systems Inc)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or if the Indemnifying Party fails or elects by written notice to the Indemnified Party not to assume defense of the matter. In the event the Indemnifying Party shall fail or elect not to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, to thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof thereof, and to recover the reasonable entire cost thereof from the Indemnifying Party includingParty, including without limitation, reasonable attorneys' ’ fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed is controlling the defense from of the Indemnified Partyparticular matter, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes is controlling the defense of such mattersmatter, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon or elect by written notice to the Indemnified Party not to continue the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by (i) If a Third Party Claim is made against an Indemnified Party, then the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over assume the objection defense of the Third Party Claim with nationally-recognized counsel of the Indemnifying Party; provided’s choice, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from reasonably satisfactory to the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon notifies the Indemnified Party, within 30 days after the Indemnified Party has given notice of the Third Party Claim, that (x) the Indemnifying Party is assuming and conducting the defense thereofof the Third Party Claim and, (y) other than with respect to Excluded Environmental Liabilities and alleged breaches of Section 3.14 hereof, the Indemnifying Party is irrevocably agreeing that it shall provide indemnification with respect to all related Losses hereunder (subject to the limitations contained in this Article 8, to the extent applicable). Notwithstanding anything to the contrary in this Agreement, the Indemnifying Party shall not have the right to direct the defense of any Third Party Claim, and the Indemnified Party (or, as applicable, the insurer under the R&W Policy) shall be entitled to have control over the defense or settlement of (subject to the limitations contained in this Article 8, to the extent applicable) any Third Party Claim, if (1) the Third Party Claim seeks non-monetary relief, (2) the Third Party Claim involves criminal allegations against a Buyer Indemnified Party, (3) the Third Party Claim involves claims by a Governmental Authority and is material and adverse to the Indemnified Party or any of its Affiliates (except for Third Party Claims with respect to Taxes or claims brought by a Governmental Authority with respect to Taxes), (4) the Third Party Claim involves a claim to which the Indemnified Party reasonably believes an adverse determination would be materially detrimental or injurious to the Indemnified Party or any of its Affiliates, (5) a court of competent jurisdiction rules that the Indemnifying Party failed or is failing to vigorously defend the Third Party Claim, (6) assumption of the defense of such Third Party Claim by Seller would be in violation of the terms of the R&W Policy (only in the case of a Third Party Claim for which Buyer seeks recovery under the R&W Policy) or (7) it is reasonably likely that the amount of Losses arising from such Third Party Claim will exceed the amount the Indemnified Party will be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent under this Article 8 as a result of the Indemnifying Partylimitations contained in this Article 8.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' ’ fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; , provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity thereforfaith. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Right to Defend. Upon receipt of If the facts giving rise to any such indemnification shall involve any actual claim or demand by any third party against a Buyer Indemnified Party or Seller Indemnified Party (referred to herein as an "Indemnified Party"), then the Indemnified Party will give prompt written notice of any matter such claim to the indemnifying party, which notice shall set forth in reasonable detail the nature, basis and amount of such claim (the "Notice of Third Party Claim"). It is a condition precedent to the applicable indemnifying party's obligation to indemnify the applicable Indemnified Party for which indemnification might be claimed such claim that such Indemnified Party timely provide to such indemnifying party the applicable Notice of Third Party Claim, provided that the failure to provide such Notice of Third Party Claim shall only relieve such indemnifying party of its or his obligation to indemnify for such claim only to the extent that such indemnifying party has been prejudiced by an such Indemnified Party, 's failure to give the Indemnifying Notice of Third Party shall be entitled Claim as required. The indemnifying party receiving such Notice of Third Party Claim may (without prejudice to defend, contest or otherwise protect against the right of any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by through counsel of its own choosing, but the Indemnifying Party be entitled to control ) undertake the defense unless of such claims or actions at its expense with counsel chosen and paid by its giving written notice (the "Election to Defend") to the Indemnified Party has relieved within thirty (30) days after the Indemnifying date the Notice of Third Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofClaim is deemed received; provided, however, that the indemnifying party receiving the Notice of Third Party Claim may not settle such claims or actions without the consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed, except if the sole relief provided is monetary damages to be borne solely by the indemnifying party; and, provided further, if the defendants in any action include both the indemnifying party and the Indemnified Party, and the Indemnified Party must send shall have reasonably concluded that counsel selected by the indemnifying party has a written notice conflict of interest because of the availability of different or additional defenses to the Indemnifying parties, the Indemnified Party of any such proposed settlement or compromise, which settlement or compromise shall cooperate in the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt defense of such notice. Failure claim and shall make available to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The the indemnifying party pertinent information under its control relating thereto, but the Indemnified Party shall have the right to effect a settlement its own counsel and to control its defense and shall be entitled to be reimbursed for all reasonable costs and expenses incurred in such separate defense. In no event will the provisions of this Section reduce or compromise over lessen the objection obligations of the Indemnifying Party; providedparties under this Section, that if prior to the expiration of the foregoing thirty (i30) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Partyday notice period, the Indemnified Party waives furnishing the Notice of Third Party Claim responds to a third party claim if such action is reasonably required to minimize damages or avoid a forfeiture or penalty or because of any right to indemnity thereforrequirements imposed by law. If the Indemnifying indemnifying party receiving the Notice of Third Party undertakes Claim does not duly give the defense of Election to Defend as provided above, then it will be deemed to have irrevocably waived its right to defend or settle such mattersclaims, but it will have the right, at its expense, to attend, but not otherwise to participate in, proceedings with such third parties; and if the indemnifying party does duly give the Election to Defend, then the Indemnified Party shall notgiving the Notice of Third Party Claim will have the right at its expense, so long as the Indemnifying Party does to attend, but not abandon the defense thereofotherwise to participate in, such proceedings. The parties to this Agreement will not be entitled to recover from dispute the Indemnifying Party amount of any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the damages (including reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partyattorney's fees and expenses) related to such third party claim resolved as provided above.
Appears in 1 contract
Right to Defend. (a) Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Indemnified Party shall be entitled have thirty (30) days from receipt to elect whether or not to defend, contest or otherwise protect against any such matter at its own cost suit, action, investigation, claim or proceeding, with the costs and expenseexpenses of such defense to be borne by the Indemnifying Party, and the Indemnified Indemnifying Party must cooperate in any such defense or other action; provided, however, that upon prompt written request by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall permit the Indemnifying Party to assume the defense with counsel reasonably satisfactory to the Indemnified Party upon (i) the Indemnified Party determining in its reasonable judgment that it is not reasonably likely that there will be additional or differing legal defenses among the parties with respect to the matter to be indemnified against or that the interests of the Indemnified Party and the Indemnifying Party will differ in the defense of such matter, and (ii) the Indemnifying Party providing evidence to the Indemnified Party in form and substance reasonably satisfactory to it of the Indemnifying Party's financial capacity to assume the cost and expenses of such defense in an adequate fashion and to provide indemnification against the claims being contested. The Such financial capacity shall be deemed satisfied if the Indemnifying Party presents evidence reasonably satisfactory to the Indemnified Party that it possesses net assets of an amount equal to or greater than the sum of the third party claims or amounts reasonably determined to be at issue and the anticipated costs and expenses of defending, contesting or otherwise protecting against the same. In the event the Indemnifying Party assumes the defense of such a matter, (i) such assumption must be effected within thirty (30) days of its receipt of notice of the applicable suit, action, investigation, claim or proceeding, and (ii) such assumption by the Indemnifying Party shall conclusively establish for purposes of this Agreement that the claims made in the proceeding are within the scope of and subject to indemnification hereunder. In the event the Indemnified Party reasonably determines that it is reasonably likely that there will be additional or differing legal defenses among the parties with respect to the matters to be indemnified against or that the interests of the parties will differ in the defense of such matter or matters, the Indemnified Party may, upon written notice to the Indemnifying Party, participate with the Indemnifying Party in the defense of such matter with separate counsel reasonably satisfactory to the Indemnifying Party or, at the option of the Indemnifying Party, assume the defense of such matter, in each event at the Indemnifying Party's expense. If the Indemnified Party is defending against the relevant suit, action, claim, investigation or proceeding, the Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but except as described above the Indemnifying Indemnified Party shall be entitled to control the defense unless otherwise determined by the Indemnified Party has relieved or if the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Indemnified Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fyi Inc)
Right to Defend. Upon receipt of If the facts giving rise to any such indemnification shall involve any actual claim or demand by any third party against a Buyer Indemnified Party or Shareholders Indemnified Party (referred to herein as an "Indemnified Party"), then the Indemnified Party will give prompt written notice of any matter such claim to the indemnifying party, which notice shall set forth in reasonable detail the nature, basis and amount of such claim (the "Notice of Third Party Claim"). It is a condition precedent to the applicable indemnifying party's obligation to indemnify the applicable Indemnified Party for which indemnification might be claimed such claim that such Indemnified Party timely provide to such indemnifying party the applicable Notice of Third Party Claim, provided that the failure to provide such Notice of Third Party Claim shall only relieve such indemnifying party of its or his obligation to indemnify for such claim only to the extent that such indemnifying party has been prejudiced by an such Indemnified Party, 's failure to give the Indemnifying Notice of Third Party shall be entitled Claim as required. The indemnifying party receiving such Notice of Third Party Claim may (without prejudice to defend, contest or otherwise protect against the right of any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by through counsel of its own choosing, but the Indemnifying Party be entitled to control ) undertake the defense unless of such claims or actions at its expense with counsel chosen and paid by its giving written notice (the "Election to Defend") to the Indemnified Party has relieved within thirty (30) days after the Indemnifying date the Notice of Third Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofClaim is deemed received; provided, however, that the indemnifying party receiving the Notice of Third Party Claim may not settle such claims or actions without the consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed, except if the sole relief provided is monetary damages to be borne solely by the indemnifying party; and, provided further, if the defendants in any action include both the indemnifying party and the Indemnified Party, and the Indemnified Party must send shall have reasonably concluded that counsel selected by the indemnifying party has a written notice conflict of interest because of the availability of different or additional defenses to the Indemnifying parties, the Indemnified Party of any such proposed settlement or compromise, which settlement or compromise shall cooperate in the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt defense of such notice. Failure claim and shall make available to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The the indemnifying party pertinent information under its control relating thereto, but the Indemnified Party shall have the right to effect a settlement retain its own counsel and to control its defense and shall be entitled to be reimbursed for all reasonable costs and expenses incurred in such separate defense. In no event will the provisions of this Article reduce or compromise over lessen the objection obligations of the Indemnifying Party; providedparties under this Article, that if prior to the expiration of the foregoing thirty (i30) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Partyday notice period, the Indemnified Party waives furnishing the Notice of Third Party Claim responds to a third party claim if such action is reasonably required to minimize damages or avoid a forfeiture or penalty or because of any right to indemnity thereforrequirements imposed by law. If the Indemnifying indemnifying party receiving the Notice of Third Party undertakes Claim does not duly give the defense of Election to Defend as provided above, then it will be deemed to have irrevocably waived its right to defend or settle such mattersclaims, but it will have the right, at its expense, to attend, but not otherwise to participate in, proceedings with such third parties; and if the indemnifying party does duly give the Election to Defend, then the Indemnified Party shall notgiving the Notice of Third Party Claim will have the right at its expense, so long as the Indemnifying Party does to attend, but not abandon the defense thereofotherwise to participate in, such proceedings. The parties to this Agreement will not be entitled to recover from dispute the Indemnifying Party amount of any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the Damages (including reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partyattorney's fees and expenses) related to such third party claim resolved as provided above.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, including reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the mattermatter or the Indemnifying Party has undertaken such defense but thereafter fails to continue to do so diligently and in good faith. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding or the Indemnifying Party has undertaken such defense but thereafter fails to continue to do so diligently and in good faith, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, including reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Petroleum Helicopters Inc)
Right to Defend. Upon receipt of If the facts giving rise to any such indemnification shall involve any actual claim or demand by any third party against an OHGI Indemnified Party or Members Indemnified Party (referred to herein as an “Indemnified Party”), then the Indemnified Party will give prompt written notice of any matter such claim to the indemnifying party, which notice shall set forth in reasonable detail the nature, basis and amount of such claim (the “Notice of Third Party Claim”). It is a condition precedent to the applicable indemnifying party’s obligation to indemnify the applicable Indemnified Party for which indemnification might be claimed such claim that such Indemnified Party timely provide to such indemnifying party the applicable Notice of Third Party Claim, provided that the failure to provide such Notice of Third Party Claim shall only relieve such indemnifying party of its or his obligation to indemnify for such claim only to the extent that such indemnifying party has been prejudiced by an such Indemnified Party, ’s failure to give the Indemnifying Notice of Third Party shall be entitled Claim as required. The indemnifying party receiving such Notice of Third Party Claim may (without prejudice to defend, contest or otherwise protect against the right of any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by through counsel of its own choosing, but the Indemnifying Party be entitled to control ) undertake the defense unless of such claims or actions at its expense with counsel chosen and paid by its giving written notice (the “Election to Defend”) to the Indemnified Party has relieved within thirty (30) days after the Indemnifying date the Notice of Third Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofClaim is deemed received; provided, however, that the indemnifying party receiving the Notice of Third Party Claim may not settle such claims or actions without the consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed, except if the sole relief provided is monetary damages to be borne solely by the indemnifying party; and, provided further, if the defendants in any action include both the indemnifying party and the Indemnified Party, and the Indemnified Party must send shall have reasonably concluded that counsel selected by the indemnifying party has a written notice conflict of interest because of the availability of different or additional defenses to the Indemnifying parties, the Indemnified Party of any such proposed settlement or compromise, which settlement or compromise shall cooperate in the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt defense of such notice. Failure claim and shall make available to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The the indemnifying party pertinent information under its control relating thereto, but the Indemnified Party shall have the right to effect a settlement retain its own counsel and to control its defense and shall be entitled to be reimbursed for all reasonable costs and expenses incurred in such separate defense. In no event will the provisions of this Article reduce or compromise over lessen the objection obligations of the Indemnifying Party; providedparties under this Article, that if prior to the expiration of the foregoing thirty (i30) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Partyday notice period, the Indemnified Party waives furnishing the Notice of Third Party Claim responds to a third-party claim if such action is reasonably required to minimize damages or avoid a forfeiture or penalty or because of any right to indemnity thereforrequirements imposed by law. If the Indemnifying indemnifying party receiving the Notice of Third Party undertakes Claim does not duly give the defense of Election to Defend as provided above, then it will be deemed to have irrevocably waived its right to defend or settle such mattersclaims, but it will have the right, at its expense, to attend, but not otherwise to participate in, proceedings with such third parties; and if the indemnifying party does duly give the Election to Defend, then the Indemnified Party shall notgiving the Notice of Third Party Claim will have the right at its expense, so long as the Indemnifying Party does to attend, but not abandon the defense thereofotherwise to participate in, such proceedings. The parties to this Agreement will not be entitled to recover from dispute the Indemnifying Party amount of any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the Damages (including reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partyattorney’s fees and expenses) related to such third-party claim resolved as provided above.
Appears in 1 contract
Right to Defend. Upon receipt If the facts giving rise to any claim for indemnification shall involve any actual or threatened action or demand by any third party against the indemnified party or any of notice of any matter for which indemnification might be claimed by an Indemnified Partyits affiliates, the Indemnifying Party indemnifying party or parties shall be entitled (without prejudice to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, indemnified party's right to participate at its own expense in defense thereof by through counsel of its own choosing), but at their expense and through a single counsel of their own choosing, to defend or prosecute such claim in the Indemnifying Party name of the indemnifying party or parties, or any of them, or if necessary, in the name of the indemnified party. In any event, the indemnified party shall give the indemnifying party advance written notice of any proposed compromise or settlement of any such claim. If the remedy sought in any such action or demand is solely money damages, the indemnifying party shall have fifteen (15) days after receipt of such notice of settlement to object to the proposed compromise or settlement, and if it does so object, the indemnifying party shall be required to undertake, conduct and control, though counsel of its own choosing and at its sole expense, the settlement or defense thereof, and the indemnified party shall cooperate with the indemnifying party in connection therewith. The Buyer shall be entitled to control set-off against the defense unless Notes, the Indemnified Party has relieved Consulting Agreement and/or the Indemnifying Party from liability with respect to the particular matter Real Estate Leases for all claims, losses, expenses and costs of indemnification or the Indemnifying Party fails to assume defense for breach of any of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same Sellers' and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneysShareholders' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromisecovenants contained herein. The Indemnified Party Sellers' and the Shareholders' representations and warranties in SECTION 2.20 in EXHIBIT A hereto shall have expire on the right to effect a settlement or compromise over the objection fifth anniversary of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity thereforClosing Date. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent All of the Indemnifying Partyother Sellers' and Shareholders' representations and warranties shall survive the Closing.
Appears in 1 contract
Samples: Lease Agreement (Smart Choice Automotive Group Inc)
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified PartySubject to Sections 7.3(b)(i) - (iv), the Indemnifying Party shall be entitled may elect to compromise or defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by and with counsel of its own choosingreasonably satisfactory to the Indemnitee, but any Asserted Liability, and if the Indemnifying Party be entitled so elects to control the defense unless the Indemnified Party has relieved compromise or defend, the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed control the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity thereforof such Asserted Liability. If the Indemnifying Party undertakes elects to compromise or defend such Asserted Liability, it shall within fifteen (15) days (or sooner, if the nature of the Asserted Liability so requires) notify the Indemnitee of its intent to do so, and the Indemnitee shall cooperate in the compromise of, or defense of against, such matters, the Indemnified Party shall not, so long as Asserted Liability. If the Indemnifying Party does not abandon the defense thereofinitially elect within fifteen (15) days, be entitled to recover from the Indemnifying Party any legal may later elect to compromise or other expenses subsequently incurred by defend such Asserted Liability on the Indemnified giving of five (5) calendar days notice of its intention to do so to the Indemnitee and the Indemnitee shall cooperate in the compromise of, or defence against, such Asserted Liability. If the Indemnifying Party in connection with elects not to compromise or defend the Asserted Liability, fails to notify the Indemnitee of its election as herein provided or contests its obligation to indemnify under this Agreement, the Indemnitee may pay, compromise or defend such Asserted Liability and the Indemnitee shall have the right to control the defense thereof other than of such Asserted Liability. Notwithstanding the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.foregoing,
Appears in 1 contract
Right to Defend. Upon receipt If any claim is brought against a Party, then the other Party shall be entitled to participate in, and, unless a conflict of notice interest between the Parties may exist with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnitee in accordance with this Section 24.5. An Indemnitee shall provide Notice to the Indemnifying Party, within thirty (30) Days after receiving Notice of the commencement of any matter for legal action or of any claims or threatened claims against such Indemnitee in respect of which indemnification might may be claimed sought pursuant to the foregoing provisions of this Article 24 or any other provision of this Agreement providing for an indemnity (such notice, a “Claim Notice”). The Indemnitee's failure to give, or tardiness in giving, such Claim Notice will reduce the liability of the Indemnifying Party only by an Indemnified the amount of damages attributable and prejudicial to such failure or tardiness, but shall not otherwise relieve the Indemnifying Party from any liability that it may have under this Agreement. If the Indemnifying Party assumes the defense, the Indemnitee shall have the right to employ separate counsel in any such proceeding and to participate in (but not control) the defense of such claim, but the fees and expenses of such counsel shall be borne by the Indemnitee unless the Indemnifying Party agrees otherwise; provided that if the named parties to any such proceeding (including any impleaded parties) include both the Indemnitee and the Indemnifying Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost requires that the same counsel represent both the Indemnitee and expensethe Indemnifying Party, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof representation of both parties by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise counsel would be inappropriate due to actual or settlement thereof and recover potential differing interests between them, then the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party Indemnitee shall have the right to effect a settlement or compromise over retain its own counsel at the objection 91 cost and expense of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes does not assume the defense of the Indemnitee, does not diligently prosecute such defense, or if a conflict precludes counsel for Indemnifying Party from providing the defense, then the Indemnitee shall have the absolute right to control the defense of such mattersclaim and the fees and expenses of such defense, including reasonable attorneys' fees of the Indemnified Party Indemnitee's counsel, reasonable costs of investigation, court costs and other costs of suit, arbitration, dispute resolution or other proceeding, and any reasonable amount determined to be owed by Indemnitee pursuant to such claim, shall notbe borne by the Indemnifying Party, so long as provided that the Indemnifying Party does shall be entitled, at its expense, to participate in (but not abandon the control) such defense thereof, be entitled to recover from and the Indemnifying Party shall reimburse the Indemnitee on a monthly basis for such costs and expenses. Subject to all of the foregoing provisions of this Section 24.5 as between the Parties, the Indemnifying Party shall control the settlement of all claims, in coordination with any legal insurer as required under the applicable insurance policies in Article 23 as to which it has assumed the defense; provided that to the extent the Indemnifying Party, in relation to such insurer, controls settlement: (a) such settlement shall include a dismissal of the claim and an explicit release from the party bringing such claim or other expenses subsequently incurred by proceedings of all Indemnitees; and (b) the Indemnified Indemnifying Party shall not conclude any settlement without the prior approval of the Indemnitee, which approval shall not be unreasonably withheld or delayed; provided further that except as provided in connection with the preceding sentence concerning the Indemnifying Party's failure to assume or to diligently prosecute the defense thereof other than of any claim, no Indemnitee seeking reimbursement pursuant to the reasonable costs of investigation undertaken by the Indemnified Party with foregoing indemnity shall, without the prior written consent of the Indemnifying Party, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, claim, suit, investigation or proceeding for which indemnity is afforded hereunder unless such Indemnitee reasonably believes that the matter in question involves potential criminal liability against such Indemnitee. Other than as provided in this Section 24.5, Indemnifying Party shall not settle any claim without the prior written approval of the Indemnitee, which approval shall not be unreasonably withheld, delayed or conditioned. The Indemnitee shall provide reasonable assistance to the Indemnifying Party when the Indemnifying Party so requests, at the Indemnifying Party's expense, in connection with such legal action or claim, including executing any powers-of-attorney or other documents required by the Indemnifying Party with regard to the defense or indemnity obligations.
Appears in 1 contract
Samples: Procurement and Construction Agreement (Sunpower Corp)
Right to Defend. Upon receipt of If the facts giving rise to any such indemnification shall involve any actual claim or demand by any third party against a Buyer Indemnified Party or Seller Indemnified Party (referred to herein as an "Indemnified Party"), then the Indemnified Party will give prompt written notice of any matter such claim to the indemnifying party, which notice shall set forth in reasonable detail the nature, basis and amount of such claim (the "Notice of Third Party Claim"). It is a condition precedent to the applicable indemnifying party's obligation to indemnify the applicable Indemnified Party for which indemnification might be claimed such claim that such Indemnified Party timely provide to such indemnifying party the applicable Notice of Third Party Claim, provided that the failure to provide such Notice of Third Party Claim shall only relieve such indemnifying party of its or his obligation to indemnify for such claim only to the extent that such indemnifying party has been prejudiced by an such Indemnified Party, 's failure to give the Indemnifying Notice of Third Party shall be entitled Claim as required. The indemnifying party receiving such Notice of Third Party Claim may (without prejudice to defend, contest or otherwise protect against the right of any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by through counsel of its own choosing, but the Indemnifying Party be entitled to control ) undertake the defense unless of such claims or actions at its expense with counsel chosen and paid by its giving written notice (the "Election to Defend") to the Indemnified Party has relieved within thirty (30) days after the Indemnifying date the Notice of Third Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofClaim is deemed received; provided, however, that the indemnifying party receiving the Notice of Third Party Claim may not settle such claims or actions without the consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed, except if the sole relief provided is monetary damages to be borne solely by the indemnifying party; and, provided further, if the defendants in any action include both the indemnifying party and the Indemnified Party, and the Indemnified Party must send shall have reasonably concluded that counsel selected by the indemnifying party has a written notice conflict of interest because of the availability of different or additional defenses to the Indemnifying Parties, the Indemnified Party of any such proposed settlement or compromise, which settlement or compromise shall cooperate in the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt defense of such notice. Failure claim and shall make available to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The the indemnifying party pertinent information under its control relating thereto, but the Indemnified Party shall have the right to effect a settlement its own counsel and to control its defense and shall be entitled to be reimbursed for all reasonable costs and expenses incurred in such separate defense. In no event will the provisions of this Section reduce or compromise over lessen the objection obligations of the Indemnifying Party; providedParties under this Section, that if prior to the expiration of the foregoing thirty (i30) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Partyday notice period, the Indemnified Party waives furnishing the Notice of Third Party Claim responds to a third party claim if such action is reasonably required to minimize damages or avoid a forfeiture or penalty or because of any right to indemnity thereforrequirements imposed by law. If the Indemnifying indemnifying party receiving the Notice of Third Party undertakes Claim does not duly give the defense of Election to Defend as provided above, then it will be deemed to have irrevocably waived its right to defend or settle such mattersclaims, but it will have the right, at its expense, to attend, but not otherwise to participate in, proceedings with such third parties; and if the indemnifying party does duly give the Election to Defend, then the Indemnified Party shall notgiving the Notice of Third Party Claim will have the right at its expense, so long as the Indemnifying Party does to attend, but not abandon the defense thereofotherwise to participate in, such proceedings. The Parties to this Agreement will not be entitled to recover from dispute the Indemnifying Party amount of any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the damages (including reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partyattorney's fees and expenses) related to such third party claim resolved as provided above.
Appears in 1 contract
Samples: Mutual Termination Agreement (Baseline Oil & Gas Corp.)
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified Partythe notice, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall Person will have the right to effect defend the Indemnified Person against the Third Party Claim with counsel reasonably satisfactory to the Indemnified Person, provided, that (i) within thirty (30) days after the Indemnified Person has given notice of the Third Party Claim the Indemnifying Person acknowledges in writing to the Indemnified Person its unqualified obligation to indemnify the Indemnified Person as provided hereunder; provided, further, that, if after the Indemnifying Person acknowledges its unqualified obligation to indemnify the Indemnified Person and assumed the defense of such Third Party Claim, (A) new allegations or claims are asserted as part of such Third Party Claim, or (B) the original Third Party Claim is otherwise amended in a settlement or compromise over manner that materially increases the objection indemnification obligations of the Indemnifying Party; providedPerson under such Third Party Claim (including by reason of new facts having been discovered or being alleged), that if (i) then, in each such case, the Indemnifying Person shall either (I) notify the Indemnified Person of such changes to the original Third Party is contesting Claim, within fifteen (15) days of such claim changes, and turn over the defense of the Third Party Claim to the Indemnified Person, in good faith which case the Indemnifying Person shall be deemed not to have acknowledged its obligation to indemnify the Indemnified Person (except to the extent all or any portion of the original Third Party Claim has already been determined, compromised or settled), or (I) continue to defend such Third Party Claim, in which case the Indemnifying Person shall be deemed to have acknowledged its obligation to indemnify the Indemnified Person with respect to such Third Party Claim as so changed, (ii) the Indemnifying Person provides the Indemnified Person with evidence reasonably acceptable to the Indemnified Person that the Indemnifying Person will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages, and does not seek statutory, enhanced or treble damages or an injunction or other equitable relief, (iv) the Third Party Claim has assumed a reasonable likelihood of resulting in indemnifiable Losses that would result in the Cap being exceeded or does not have a reasonable likelihood of resulting in indemnifiable Losses that would result in the Basket being exceeded; or (v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Person, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Person or have a material adverse effect on the Indemnified Person, (vi) the Third Party Claim does not involve a supplier, customer, distributor, licensor, licensee, lessor or insurer of the Company or any Affiliate thereof or a Governmental Authority, (vii) the Third Party Claim does not involve a class action lawsuit and (viii) the Indemnifying Person conducts the defense from of the Third Party Claim actively and diligently. The Indemnifying Person will keep the Indemnified PartyPerson apprised of all material developments, including settlement offers, with respect to the Third Party Claim and permit the Indemnified Person to participate in the defense of the Third Party Claim with counsel selected by it subject to the Indemnifying Person’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Person, provided, that if in the reasonable opinion of counsel to the Indemnified Person, (A) there are legal defenses available to an Indemnified Person that are different from or additional to those available to the Indemnifying Person; or (B) there exists a conflict of interest between the Indemnifying Person and the Indemnified Person that cannot be waived, the Indemnifying Person shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party waives any right to indemnity thereforPerson in each jurisdiction for which the Indemnified Person determines counsel is required. If the Indemnifying Person elects not to or is not entitled to defend such Third Party undertakes Claim, fails to promptly notify the Indemnified Person in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such mattersThird Party Claim, the Indemnified Person may, subject to Section 10.5(c), pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. The Shareholder, Parent and Buyer shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or cooperate with each other expenses subsequently incurred by the Indemnified Party in all reasonable respects in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified any Third Party with the prior written consent of the Indemnifying PartyClaim.
Appears in 1 contract
Samples: Stock Purchase Agreement (Charge Enterprises, Inc.)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must reasonably cooperate in any such defense or other action; provided, however, (a) the Indemnifying Party shall not have the right to defend, contest or otherwise protect against any suit, action, investigation, claim or proceeding involving or related to Taxes, customers of the Business or criminal investigations, (b) the Indemnifying Party must conduct the defense of the claim actively and diligently thereafter in order to preserve its rights in this regard, (c) as a condition to undertaking such defense, the Indemnifying Party shall have acknowledged in writing to the Indemnified Party its unqualified obligation to indemnify the Indemnified Party as provided hereunder, and (d) the Indemnifying Party shall not have the right to defend, contest or otherwise protect against any suit, action, investigation, claim or proceeding in the event the Indemnified Party determines, in its reasonable discretion, that a conflict of interest may exist between the Indemnified Party and the Indemnifying Party with respect to such matter. If the Indemnifying Party so elects to take control of the defense and investigation of such suit, action, investigation, claim or proceeding, the Indemnifying Party will be entitled (i) to employ and engage attorneys of its choice that are reasonably acceptable to the Indemnified Party to handle and defend the same and (ii) to compromise or settle such suit, action, investigation, claim or proceeding only with the prior written consent of the Indemnified Party. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' ’ fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; , provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (ia) the Indemnifying Party is contesting such claim in good faith or (iib) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled promptly to defend, contest or otherwise protect against any such matter at suit, action, investigation, claim or proceeding or its own cost and expense, and including the Indemnified Party must cooperate right to invoke any arbitration proceeding available in any such defense or other actionthe dispute. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, party including reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided. However, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, to be entitled to recover from the Indemnifying Party any legal or other expenses subsequently substantially incurred by the Indemnified Party Indemnifying party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party. If Buyer is named as a defendant or if Buyer and Seller are named jointly as defendants by a past, existing or purported franchisee in a court or arbitration proceeding and Buyer based on its evaluation of the Franchisee's claim provides notice to Seller of an indemnification claim against Seller pursuant to Article 11 as to any liability arising out of the Franchisee's claim, Seller reserves the right in his sole discretion to fully settle and compromise the franchisee's claim as to both Seller and Buyer at any time during the proceeding.
Appears in 1 contract
Right to Defend. Upon receipt of notice of If the facts giving rise to any matter such claim for which indemnification might be claimed involve any actual or threatened claim or demand by an any third party against the Indemnified Party, the Indemnifying Party shall be entitled (without prejudice to defend, contest or otherwise protect against any such matter at its own cost and expense, and the right of the Indemnified Party must cooperate to participate in any the defense of such claim or demand at its expense through counsel of its own choosing) to assume the defense of such claim or other action. The demand in the name of the Indemnified Party shall have at the right, but not the obligation, to participate at its own Indemnifying Party's expense in defense thereof by and through counsel of its own choosing, but which counsel shall be reasonably satisfactory to the Indemnified Party, if it gives written notice to the Indemnified Party within sixty (60) days after receipt of the Notice of Claim that the Indemnifying Party be entitled intends to control assume the defense unless of such claim and acknowledges its liability to indemnify the Indemnified Party has relieved the Indemnifying Party for any losses resulting from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofclaim; provided, however, that the Indemnified Party must send a written notice to if the Indemnifying Party does not elect to assume the defense of any such proposed settlement or compromiseclaim, which settlement or compromise then (a) the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement participate in the defense of such claim or compromise over demand at its expense through counsel of its own choosing, provided the objection Indemnified Party shall control the defense of such claim, (b) the Indemnified Party may settle any such claim without the consent of the Indemnifying Party; provided, that if (i) however, the Indemnifying Party is contesting may not settle any such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with without the prior written consent of the Indemnified Party; and (c) Section 9.5 hereof shall be inapplicable. Whether or not the Indemnifying Party.Party does choose to so defend such claim, the parties hereto shall cooperate in the defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be requested in connection therewith. To the extent Parent or Surviving Corporation is the Indemnified Party for any actual or threatened claim or demand by any third party, Parent and Surviving Corporation shall have the right to control the prosecution of any counterclaim or right related to such a claim or demand, provided that Parent and Surviving
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified Party, the The Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the rightright to defend, but not compromise and settle any Third Party Claim in the obligation, name of the Indemnified Party to participate at its own expense in defense thereof by counsel of its own choosing, but the extent that the Indemnifying Party may be entitled liable to control the defense unless the Indemnified Party has relieved in connection therewith. The Indemnifying Party shall notify the Indemnified Party within ten (10) Business Days of having received written notice pursuant to this Section 15.04 of the Third Party Claim whether the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails elects to assume the defense of the matter. In the event the Indemnifying any such Third Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same Claim and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofemploy counsel; provided, ; however, that the Indemnified Party must send does not object to such counsel in a written notice to the Indemnifying Party reasonable exercise of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromisediscretion. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of employ its own counsel if the Indemnifying Party so elects to assume such defense, but the fees and expenses of such counsel shall be at the Indemnified Party; provided’s expense, that if unless (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party is contesting such claim in good faith or Party, (ii) the Indemnifying Party has assumed shall not have employed counsel to take charge of the defense from of such action prior to or promptly after electing to assume the defense thereof, or (iii) in the reasonable judgment of counsel to the Indemnified Party, as evidenced in writing, there is a reasonable basis 66 for a possible conflict of interest between the Indemnified Party waives any right to indemnity therefor. If and the Indemnifying Party undertakes or there are defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to direct the defense of such matters, action on behalf of the Indemnified Party Party), in any of which events said reasonable fees and expenses shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred borne by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must reasonably cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' ’ fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; , provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (ia) the Indemnifying Party is contesting such claim in good faith or (iib) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Integrated Security Systems Inc)
Right to Defend. Upon receipt of If the facts giving rise to any such indemnification shall involve any actual claim or demand by any third party against a Buyer Indemnified Party or Shareholder Indemnified Party (referred to herein as an "Indemnified Party"), then the Indemnified Party will give prompt written notice of any matter such claim to the indemnifying party, which notice shall set forth in reasonable detail the nature, basis and amount of such claim (the "Notice of Third Party Claim"). It is a condition precedent to the applicable indemnifying party's obligation to indemnify the applicable Indemnified Party for which indemnification might be claimed such claim that such Indemnified Party timely provide to such indemnifying party the applicable Notice of Third Party Claim, provided that the failure to provide such Notice of Third Party Claim shall relieve such indemnifying party of its or his obligation to indemnify for such claim only to the extent that such indemnifying party has been prejudiced by an such Indemnified Party, 's failure to give the Indemnifying Notice of Third Party shall be entitled Claim as required. The indemnifying party receiving such Notice of Third Party Claim may (without prejudice to defend, contest or otherwise protect against the right of any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by through counsel of its own choosing, but the Indemnifying Party be entitled to control ) undertake the defense unless of such claims or actions at its expense with counsel chosen and paid by it by giving written notice (the "Election to Defend") to the Indemnified Party has relieved within thirty (30) days after the Indemnifying date the Notice of Third Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofClaim is deemed received; provided, however, that the indemnifying party receiving the Notice of Third Party Claim may not settle such claims or actions without the consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed, except if the sole relief provided is monetary damages to be borne solely by the indemnifying party; and, provided further, if the defendants in any action include both the indemnifying party and the Indemnified Party, and the Indemnified Party must send shall have reasonably concluded that counsel selected by the indemnifying party has a written notice conflict of interest because of the availability of different or additional defenses to the Indemnifying parties, the Indemnified Party of any such proposed settlement or compromise, which settlement or compromise shall cooperate in the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt defense of such notice. Failure claim and shall make available to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The the indemnifying party pertinent information under its control relating thereto, but the Indemnified Party shall have the right to effect a settlement retain its own counsel and to control its defense and shall be entitled to be reimbursed for all reasonable costs and expenses incurred in such separate defense. In no event will the provisions of this Article reduce or compromise over lessen the objection obligations of the Indemnifying Party; providedparties under this Article, that if prior to the expiration of the foregoing thirty (i30) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Partyday notice period, the Indemnified Party waives furnishing the Notice of Third Party Claim responds to a third party claim if such action is reasonably required to minimize damages or avoid a forfeiture or penalty or because of any right to indemnity thereforrequirements imposed by law. If the Indemnifying indemnifying party receiving the Notice of Third Party undertakes Claim does not duly give the defense of Election to Defend as provided above, then it will be deemed to have irrevocably waived its right to defend or settle such mattersclaims, but it will have the right, at its expense, to attend, but not otherwise to participate in, proceedings with such third parties; and if the indemnifying party does duly give the Election to Defend, then the Indemnified Party shall notgiving the Notice of Third Party Claim will have the right at its expense, so long as the Indemnifying Party does to attend, but not abandon the defense thereofotherwise to participate in, such proceedings. The parties to this Agreement will not be entitled to recover from dispute the Indemnifying Party amount of any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the Damages (including reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partyattorney's fees and expenses) related to such third party claim resolved as provided above.
Appears in 1 contract
Right to Defend. Upon receipt of notice of If the facts giving rise to any matter such claim for which indemnification might be claimed involve any actual or threatened claim or demand by an any third party against the Indemnified Party, the Indemnifying Party shall be entitled (without prejudice to defend, contest or otherwise protect against any such matter at its own cost and expense, and the right of the Indemnified Party must cooperate to participate in any the defense of such claim or demand at its expense through counsel of its own choosing) to assume the defense of such claim or other action. The demand in the name of the Indemnified Party shall have at the right, but not the obligation, to participate at its own Indemnifying Party's expense in defense thereof by and through counsel of its own choosing, but which counsel shall be reasonably satisfactory to the Indemnified Party, if it gives written notice to the Indemnified Party within forty-five (45) days after receipt of the Notice of Claim that the Indemnifying Party be entitled intends to control assume the defense unless of such claim and acknowledges its liability to indemnify the Indemnified Party has relieved the Indemnifying Party for any losses resulting from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofclaim; provided, however, that the Indemnified Party must send a written notice to if the Indemnifying Party does not elect to assume the defense of any such proposed settlement or compromiseclaim, which settlement or compromise then (a) the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement participate in the defense of such claim or compromise over demand at its expense through counsel of its own choosing, provided the objection Indemnified Party shall control the defense of such claim, (b) the Indemnified Party may settle any such claim without the consent of the Indemnifying Party; provided, that if (i) however, the Indemnifying Party is contesting may not settle any such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with without the prior written consent of the Indemnified Party; and (c) Section 9.5 hereof shall be inapplicable. Whether or not the Indemnifying PartyParty does choose to so defend such claim, the parties hereto shall cooperate in the defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be requested in connection therewith. To the extent Shareholders are the Indemnified Parties for any actual or threatened claim or demand by any third party, Shareholders shall have the right to control the prosecution of any counterclaim or right related to such a claim or demand, provided that Shareholders agree to reasonably cooperate with Buyer with respect to the prosecution of such counterclaim or right.
Appears in 1 contract
Right to Defend. Upon receipt of If the facts giving rise to any such indemnification shall involve any actual claim or demand by any third party against a DCS Indemnified Party or Xxxxx Indemnified Party (referred to herein as an "Indemnified Party"), then the Indemnified Party will give prompt written notice of any matter such claim to the indemnifying party, which notice shall set forth in reasonable detail the nature, basis and amount of such claim (the "Notice of Third Party Claim"). It is a condition precedent to the applicable indemnifying party's obligation to indemnify the applicable Indemnified Party for which indemnification might be claimed such claim that such Indemnified Party timely provide to such indemnifying party the applicable Notice of Third Party Claim, provided that the failure to provide such Notice of Third Party Claim shall only relieve such indemnifying party of its or his obligation to indemnify for such claim only to the extent that such indemnifying party has been prejudiced by an such Indemnified Party, 's failure to give the Indemnifying Notice of Third Party shall be entitled Claim as required. The indemnifying party receiving such Notice of Third Party Claim may (without prejudice to defend, contest or otherwise protect against the right of any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by through counsel of its own choosing, but the Indemnifying Party be entitled to control ) undertake the defense unless of such claims or actions at its expense with counsel chosen and paid by its giving written notice (the "Election to Defend") to the Indemnified Party has relieved within thirty (30) days after the Indemnifying date the Notice of Third Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofClaim is deemed received; provided, however, that the indemnifying party receiving the Notice of Third Party Claim may not settle such claims or actions without the consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed, except if the sole relief provided is monetary damages to be borne solely by the indemnifying party; and, provided further, if the defendants in any action include both the indemnifying party and the Indemnified Party, and the Indemnified Party must send shall have reasonably concluded that counsel selected by the indemnifying party has a written notice conflict of interest because of the availability of different or additional defenses to the Indemnifying parties, the Indemnified Party of any such proposed settlement or compromise, which settlement or compromise shall cooperate in the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt defense of such notice. Failure claim and shall make available to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The the indemnifying party pertinent information under its control relating thereto, but the Indemnified Party shall have the right to effect a settlement its own counsel and to control its defense and shall be entitled to be reimbursed for all reasonable costs and expenses incurred in such separate defense. In no event will the provisions of this Section reduce or compromise over lessen the objection obligations of the Indemnifying Party; providedparties under this Section, that if prior to the expiration of the foregoing thirty (i30) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Partyday notice period, the Indemnified Party waives furnishing the Notice of Third Party Claim responds to a third party claim if such action is reasonably required to minimize damages or avoid a forfeiture or penalty or because of any right to indemnity thereforrequirements imposed by law. If the Indemnifying indemnifying party receiving the Notice of Third Party undertakes Claim does not duly give the defense of Election to Defend as provided above, then it will be deemed to have irrevocably waived its right to defend or settle such mattersclaims, but it will have the right, at its expense, to attend, but not otherwise to participate in, proceedings with such third parties; and if the indemnifying party does duly give the Election to Defend, then the Indemnified Party shall notgiving the Notice of Third Party Claim will have the right at its expense, so long as the Indemnifying Party does to attend, but not abandon the defense thereofotherwise to participate in, such proceedings. The parties to this Agreement will not be entitled to recover from dispute the Indemnifying Party amount of any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the damages (including reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partyattorney's fees and expenses) related to such third party claim resolved as provided above.
Appears in 1 contract
Right to Defend. Upon Each party shall give prompt written notice to the other of the assertion or commencement of any Claim in respect of which indemnity is or may be sought hereunder, other than Claims in which the parties are litigating claims against each other. The failure by any party to give such notice to the other party shall relieve such other party of its obligations under Section 4.1(a) or 4.2(a) if and to the extent that it has been materially prejudiced by the lack of timely and adequate notice. The indemnifying party shall have the right and obligation to assume the defense or settlement of any third party Claim in respect of which it is obligated to provide indemnity hereunder; provided, however, that the indemnifying party shall not settle or compromise any such Claim without the indemnified party's prior written consent thereto, unless the terms of such settlement or compromise discharge and release the indemnified party from any and all liabilities and obligations thereunder. Notwithstanding the foregoing: (i) the indemnified party at all times shall have the right, at its option and expense, to participate fully in the defense or settlement of such Claim provided that, subject to the other provisions of this Section 4.4, control of such defense or settlement shall remain with the indemnifying party; and (ii) if the indemnifying party does not proceed diligently to defend or settle such Claim within 10 days after its receipt of notice of any matter for which indemnification might be claimed by an Indemnified Partythe assertion or commencement thereof, then (a) the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party indemnified party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control undertake the defense unless or settlement of such Claim for the Indemnified Party has relieved account and at the Indemnifying Party from liability with respect risk of the indemnifying party, and (b) the indemnifying party shall be bound by any defense or settlement that the indemnified party may make as to such Claim. The parties hereto agree that, for the purpose of enforcing any right of indemnity hereunder the indemnified party may join the indemnifying party in any third-party Claim as to which such right of indemnity would or might 26 - 26 - apply. Each party shall cooperate fully in defending or settling any third party Claim, and the defending or settling party shall have reasonable access to the particular matter or the Indemnifying Party fails to assume defense books and records and personnel of the matter. In the event the Indemnifying Party shall fail other party that are relevant to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying PartyClaim.
Appears in 1 contract
Samples: Subscription Agreement (Southbridge Investment Partnership No 1)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Indemnified Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost and expensesuit, action, investigation, claim or proceeding, and the Indemnified Indemnifying Party must cooperate in any such defense or other action. The Indemnified Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Indemnified Party shall be entitled to control the defense unless otherwise determined by the Indemnified Party has relieved or if the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Indemnified Party fails to assume defense of the matter. In If the event the Indemnifying Indemnified Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, then the Indemnified Indemnifying Party shall have the right, but not the obligation, thereafter to defend, to contest or otherwise to protect against the same and make any compromise or settlement thereof, and shall pay all costs thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' ’ fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; , provided, however, that the Indemnified Indemnifying Party must send a written notice to the Indemnifying Indemnified Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Indemnified Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall not have the right to effect a settlement or compromise over without the objection prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld; provided, however, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party upon the election of the Indemnified Party, then the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such mattersmatters upon the election of the Indemnified Party, then the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party Escrowed Funds any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Samples: Acquisition Agreement (U.S. Auto Parts Network, Inc.)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Indemnified Party shall be entitled have the option of electing to defend, contest or otherwise protect against any such matter at its own cost suit, action, investigation, claim or proceeding, with the costs and expenseexpenses of such defense to be borne by the Indemnifying Party, and the Indemnified Indemnifying Party must cooperate in any such defense or other action. The Indemnified Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Indemnified Party shall be entitled to control the defense unless otherwise determined by the Indemnified Party has relieved or if the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Indemnified Party fails to assume defense of the matter. In the event the Indemnifying Indemnified Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Indemnifying Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof thereof, and recover the reasonable cost thereof from the Indemnifying Party shall pay all costs thereof, including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Indemnifying Party must send a written notice to the Indemnifying Indemnified Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Indemnified Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, provided that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party upon the election of the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such mattersmatters upon the election of the Indemnified Party, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Samples: Stock Purchase Agreement (1st Atlantic Guaranty Corp)
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified PartySubject to the provisions hereof, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled elect to control the defense unless of any Third-Party Claim utilizing legal counsel of its choice, at its expense, so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within thirty (30) days after the Indemnified Party has relieved given notice of the Third-Party Claim that the Indemnifying Party will indemnify the Indemnified Party from liability with respect and against any Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the particular matter or full extent required hereunder (subject to the limitations set forth in Section 9.1) and with no reservation of rights, (ii) the Third Party Claim (A) involves money damages in an amount that would not reasonably be expected to result in Damages in excess of the portion of the Escrow Amount that remains in escrow (taking into account any other then pending Indemnification Claims that may impact the Escrow Amount) on the date that the Indemnifying Party fails provides notice to assume the Indemnified Party of its election to control the defense of the matterThird-Party Claim and (B) does not seek an injunction or other equitable relief against the Company or its Affiliates, (iii) the Third-Party Claim does not relate to or arise in connection with any criminal proceeding, action, indictment, allegation or investigation, and (iv) the Third-Party Claim has not been asserted directly by or on behalf of a Person that is a material supplier or customer of the Indemnified Party (the “Litigation Conditions”). In the event the The Indemnifying Party shall fail (a) forfeit the right to defendcontrol and appoint lead counsel for such defense of any Third-Party Claim if, contest or otherwise protect in a timely manner against at any mattertime after assuming the defense thereof, the Litigation Conditions are no longer satisfied. Notwithstanding the foregoing, the Indemnified Party shall have be entitled to participate in any such defense with separate counsel at the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from expense of the Indemnifying Party includingif: (i) so requested by the Indemnifying Party to participate; or (ii) in the reasonable opinion of counsel to the Indemnified Party, without limitation, reasonable attorneys' fees, disbursements an actual conflict exists between the Indemnified Party and all amounts paid as a result of the Indemnifying Party that would make such suit, action, investigation, claim separate representation advisable or proceeding there is available one or more legal defenses to the compromise or settlement thereofIndemnified Party which are not available to the Indemnifying Party; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of shall only be required to pay for one such counsel for all Indemnified Parties in connection with any Third-Party Claim (plus one local counsel in each jurisdiction for which such proposed settlement or compromise, which settlement or compromise counsel is necessary in the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection opinion of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from primary counsel to the Indemnified Party); and provided, the further that an Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of may engage more than one such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partycounsel at its own expense.
Appears in 1 contract
Samples: Purchase Agreement (B&G Foods, Inc.)
Right to Defend. Upon receipt of notice of If the facts giving rise to any matter such claim for which indemnification might be claimed involve any actual or threatened claim or demand by an any third party against the Indemnified Party, the Indemnifying Party shall be entitled (without prejudice to defend, contest or otherwise protect against any such matter at its own cost and expense, and the right of the Indemnified Party must cooperate to participate in any the defense of such claim or demand at its expense through counsel of its own choosing) to assume the defense of such claim or other action. The demand in the name of the Indemnified Party shall have at the right, but not the obligation, to participate at its own Indemnifying Party's expense in defense thereof by and through counsel of its own choosing, but which counsel shall be reasonably satisfactory to the Indemnified Party, if it gives written notice to the Indemnified Party within forty-five (45) days after receipt of the Notice of Claim that the Indemnifying Party be entitled intends to control assume the defense unless of such claim and acknowledges its liability to indemnify the Indemnified Party has relieved the Indemnifying Party for any losses resulting from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofclaim; provided, however, that the Indemnified Party must send a written notice to if the Indemnifying Party does not elect to assume the defense of any such proposed settlement or compromiseclaim, which settlement or compromise then (a) the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement participate in the defense of such claim or compromise over demand at its expense through counsel of its own choosing, provided the objection Indemnified Party shall control the defense of such claim, (b) the Indemnified Party may settle any such claim without the consent of the Indemnifying Party; provided, that if (i) however, the Indemnifying Party is contesting may not settle any such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with without the prior written consent of the Indemnified Party; and (c) Section 9.5 hereof shall be inapplicable. Whether or not the Indemnifying PartyParty does choose to so defend such claim, the parties hereto shall cooperate in the defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be requested in connection therewith. To the extent Parent or the Surviving Corporation is the Indemnified Party for any actual or threatened claim or demand by any third party, Parent and the Surviving Corporation shall have the right to control the prosecution of any counterclaim or right related to such a claim or demand, provided that Parent and the Surviving Corporation agree to reasonably cooperate with the Company or Shareholders with respect to the prosecution of such counterclaim or right.
Appears in 1 contract
Samples: Voting Agreement (Packaged Ice Inc)
Right to Defend. Upon receipt of notice of If the facts giving rise to any matter such claim for which indemnification might be claimed involve any actual or threatened claim or demand by an any third party against the Indemnified Party, the Indemnifying Party shall be entitled (without prejudice to defend, contest or otherwise protect against any such matter at its own cost and expense, and the right of the Indemnified Party must cooperate to participate in any the defense of such claim or demand at its expense through counsel of its own choosing) to assume the defense of such claim or other action. The demand in the name of the Indemnified Party shall have at the right, but not the obligation, to participate at its own Indemnifying Party's expense in defense thereof by and through counsel of its own choosing, but which counsel shall be reasonably satisfactory to the Indemnified Party, if it gives written notice to the Indemnified Party within forty-five (45) days after receipt of the Notice of Claim that the Indemnifying Party be entitled intends to control assume the defense unless of such claim and acknowledges its liability to indemnify the Indemnified Party has relieved the Indemnifying Party for any losses resulting from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofclaim; provided, however, that the Indemnified Party must send a written notice to if the Indemnifying Party does not elect to assume the defense of any such proposed settlement or compromiseclaim, which settlement or compromise then (a) the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement participate in the defense of such claim or compromise over demand at its expense through counsel of its own choosing, provided the objection Indemnified Party shall control the defense of such claim, (b) the Indemnified Party may settle any such claim 30 without the consent of the Indemnifying Party; provided, that if (i) however, the Indemnifying Party is contesting may not settle any such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with without the prior written consent of the Indemnified Party; and (c) Section 9.5 hereof shall be inapplicable. Whether or not the Indemnifying PartyParty does choose to so defend such claim, the parties hereto shall cooperate in the defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be requested in connection therewith. To the extent Parent or the Surviving Corporation is the Indemnified Party for any actual or threatened claim or demand by any third party, Parent and the Surviving Corporation shall have the right to control the prosecution of any counterclaim or right related to such a claim or demand, provided that Parent and the Surviving Corporation agree to reasonably cooperate with the Company or Shareholders with respect to the prosecution of such counterclaim or right.
Appears in 1 contract
Samples: Voting Agreement (Packaged Ice Inc)
Right to Defend. Upon receipt of If the facts giving rise to any such indemnification shall involve any actual claim or demand by any third party against a Buyer Indemnified Party or Shareholder Indemnified Party (referred to herein as an “Indemnified Party”), then the Indemnified Party will give prompt written notice of any matter such claim to the indemnifying party, which notice shall set forth in reasonable detail the nature, basis and amount of such claim (the “Notice of Third Party Claim”). It is a condition precedent to the applicable indemnifying party’s obligation to indemnify the applicable Indemnified Party for which indemnification might be claimed such claim that such Indemnified Party timely provide to such indemnifying party the applicable Notice of Third Party Claim, provided that the failure to provide such Notice of Third Party Claim shall relieve such indemnifying party of its or his obligation to indemnify for such claim only to the extent that such indemnifying party has been prejudiced by an such Indemnified Party, ’s failure to give the Indemnifying Notice of Third Party shall be entitled Claim as required. The indemnifying party receiving such Notice of Third Party Claim may (without prejudice to defend, contest or otherwise protect against the right of any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by through counsel of its own choosing, but the Indemnifying Party be entitled to control ) undertake the defense unless of such claims or actions at its expense with counsel chosen and paid by its giving written notice (the “Election to Defend”) to the Indemnified Party has relieved within thirty (30) days after the Indemnifying date the Notice of Third Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofClaim is deemed received; provided, however, that the indemnifying party receiving the Notice of Third Party Claim may not settle such claims or actions without the consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed, except if the sole relief provided is monetary damages to be borne solely by the indemnifying party; and, provided further, if the defendants in any action include both the indemnifying party and the Indemnified Party, and the Indemnified Party must send shall have reasonably concluded that counsel selected by the indemnifying party has a written notice conflict of interest because of the availability of different or additional defenses to the Indemnifying parties, the Indemnified Party of any such proposed settlement or compromise, which settlement or compromise shall cooperate in the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt defense of such notice. Failure claim and shall make available to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The the indemnifying party pertinent information under its control relating thereto, but the Indemnified Party shall have the right to effect a settlement retain its own counsel and to control its defense and shall be entitled to be reimbursed for all reasonable costs and expenses incurred in such separate defense. In no event will the provisions of this Article reduce or compromise over lessen the objection obligations of the Indemnifying Party; providedparties under this Article, that if prior to the expiration of the foregoing thirty (i30) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Partyday notice period, the Indemnified Party waives furnishing the Notice of Third Party Claim responds to a third party claim if such action is reasonably required to minimize damages or avoid a forfeiture or penalty or because of any right to indemnity thereforrequirements imposed by law. If the Indemnifying indemnifying party receiving the Notice of Third Party undertakes Claim does not duly give the defense of Election to Defend as provided above, then it will be deemed to have irrevocably waived its right to defend or settle such mattersclaims, but it will have the right, at its expense, to attend, but not otherwise to participate in, proceedings with such third parties; and if the indemnifying party does duly give the Election to Defend, then the Indemnified Party shall notgiving the Notice of Third Party Claim will have the right at its expense, so long as the Indemnifying Party does to attend, but not abandon the defense thereofotherwise to participate in, such proceedings. The parties to this Agreement will not be entitled to recover from dispute the Indemnifying Party amount of any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the Damages (including reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partyattorney’s fees and expenses) related to such third party claim resolved as provided above.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party Codexis shall have the sole right, but not the obligation, to participate defend, and take other actions (including to settle) with respect to any claim of Third Party Infringement Claim alleging that Codexis’ use of the Codexis Platform IP in the performance of Codexis’ obligations under a Program Plan infringes, misappropriates, or otherwise violates any Patents, Know-How, or other Intellectual Property rights of any Third Party, at its own expense Codexis’s sole discretion, cost, and expense, and Takeda shall have the right to be represented in defense thereof any such action by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matterchoice at Takeda’s sole cost and expense. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party Takeda shall have the right, but not the obligation, thereafter to defend, contest and take other actions (including to settle) with respect to any claim of Third Party Infringement Claim alleging that the Non-Gene Therapy Research, Development, Manufacture, or Commercialization of any Candidate, corresponding Nucleic Acid Sequences or Products infringes, misappropriates, or otherwise protect against violates the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party Intellectual Property of any such proposed settlement or compromiseThird Party, which settlement or compromise the Indemnifying Party may rejectat Takeda’s sole discretion, in its reasonable judgmentcost, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party and expense, and Codexis shall have the right to effect a settlement or compromise over the objection be represented in any such action by counsel of the Indemnifying Party; providedits own choice at Codexis’s sole cost and expense. If Takeda intends not to defend, that if (i) the Indemnifying Party is contesting and take other actions with respect to such claim in good faith or of Third Party Infringement Claim, it shall notify Codexis of such intent within [***] (ii[***]) days. In such event, Codexis shall have the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefordefend, and take other actions (including to settle) with respect to such claim of Third Party Infringement Claim, at its sole cost and expense. If the Indemnifying In no event shall either Party undertakes the defense of such matters, the Indemnified settle or otherwise compromise any Third Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party Infringement Claim by admitting that any legal Codexis Patent or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with Takeda Patent is invalid or unenforceable without first obtaining the prior written consent of the Indemnifying other Party, which consent shall not be unreasonably withheld, conditioned, or delayed.
Appears in 1 contract
Samples: Collaboration and License Agreement (Codexis, Inc.)
Right to Defend. Upon Promptly after receipt by an indemnified ----------------------- party hereunder of notice of the commencement of any matter for action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party, in writing thereof, but the omission so to notify the indemnifying party shall not relieve it from any such liability other than under this Section 9 and shall only relieve it from any liability which indemnification might it may have to such indemnified party if such indemnifying party is prejudiced by such omission. In case any such action shall be claimed by an Indemnified Partybrought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the Indemnifying Party indemnifying party shall be entitled to defendparticipate in and, contest or otherwise protect against any to the extent it shall wish, to assume and undertake the defense thereof with counsel satisfactory to such matter at its own cost and expenseindemnified party, and after notice from the Indemnified Party must cooperate in any indemnifying party to such defense or other action. The Indemnified Party shall have the right, but not the obligation, indemnified party under this Section 9 to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch effect, the Indemnified Party indemnifying party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party liable for any legal or other expenses subsequently incurred by the Indemnified Party such indemnified party in connection with the defense thereof other than the reasonable costs of investigation undertaken and of liaison with counsel so selected; provided that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be reasonable defenses available to it which are different from or additional to those available to the indemnifying party, the indemnified party shall have the right to select a separate counsel and to assume such legal defenses and otherwise participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the Indemnified Party with the prior written consent of the Indemnifying Partyindemnifying party as incurred.
Appears in 1 contract
Samples: Registration Rights Agreement (Sunstar Healthcare Inc)
Right to Defend. Upon Subject to the terms of this Agreement, upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified Partythe notice, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall Person will have the right to effect a settlement or compromise over defend the objection of Indemnified Person against the Indemnifying Party; Third Party Claim with counsel reasonably satisfactory to the Indemnified Person, provided, that if (i) within thirty (30) days after the Indemnified Person has given notice of the Third Party Claim the Indemnifying Party is contesting such claim Person acknowledges in good faith or writing to the Indemnified Person its unqualified obligation to indemnify the Indemnified Person as provided hereunder (with regard to any limitations set forth in this Article 11), (ii) the Indemnifying Person provides the Indemnified Person with evidence reasonably acceptable to the Indemnified Person that the Indemnifying Person will have the financial resources to defend against the Third Party has assumed Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages, and does not seek statutory, enhanced or treble damages or an injunction or other equitable relief, (iv) Losses are reasonably expected not to exceed the amount for which the Indemnifying Person is liable hereunder, (v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Person, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Person or have a material adverse effect on the Indemnified Person, (vi) the Third Party Claim does not involve a supplier, franchisee, customer, distributor, licensor, licensee, lessor or insurer of the Company or any Affiliate thereof or a Governmental Authority, (vii) the Third Party Claim does not involve a class action lawsuit and (viii) the Indemnifying Person conducts the defense from of the Third Party Claim actively and diligently. The Indemnifying Person will keep the Indemnified PartyPerson apprised of all material developments, including settlement offers, with respect to the Third Party Claim and permit the Indemnified Person to participate in the defense of the Third Party Claim with counsel selected by it subject to the Indemnifying Person’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Person, provided, that if in the reasonable opinion of counsel to the Indemnified Person, (1) there are legal defenses available to an Indemnified Person that are different from or additional to those available to the Indemnifying Person; or (2) there exists a conflict of interest between the Indemnifying Person and the Indemnified Person that cannot be waived, the Indemnifying Person shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party waives any right to indemnity thereforPerson in each jurisdiction for which the Indemnified Person determines counsel is required. If the Indemnifying Person elects not to or is not entitled to defend such Third Party undertakes Claim, fails to promptly notify the Indemnified Person in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such mattersThird Party Claim, the Indemnified Person may, subject to this Section 11.5, pay, compromise, or defend such Third Party shall notClaim and seek indemnification for any and all Losses based upon, so long as the Indemnifying arising from or relating to such Third Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying PartyClaim.
Appears in 1 contract
Right to Defend. Upon receipt of notice of If the facts giving rise to any matter such claim for which indemnification might be claimed involve any actual or threatened claim or demand by an any third party against the Indemnified Party, the Indemnifying Party shall be entitled (without prejudice to defend, contest or otherwise protect against any such matter at its own cost and expense, and the right of the Indemnified Party must cooperate to participate in any the defense of such claim or demand at its expense through counsel of its own choosing) to assume the defense of such claim or other action. The demand in the name of the Indemnified Party shall have at the right, but not the obligation, to participate at its own Indemnifying Party's expense in defense thereof by and through counsel of its own choosing, but which counsel shall be reasonably satisfactory to the Indemnified Party, if it gives written notice to the Indemnified Party within forty-five (45) days after receipt of the Notice of Claim, that the Indemnifying Party be entitled intends to control assume the defense unless of such claim and acknowledges its liability to indemnify the Indemnified Party has relieved the Indemnifying Party for any losses resulting from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofclaim; provided, however, that the Indemnified Party must send a written notice to if the Indemnifying Party does not elect to assume the defense of any such proposed settlement or compromiseclaim, which settlement or compromise then (a) the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement participate in the defense of such claim or compromise over demand at its expense through counsel of its own choosing, provided the objection Indemnified Party shall control the defense of such claim, (b) the Indemnified Party may settle any such claim without the consent of the Indemnifying Party; provided, that if (i) however, the Indemnifying Party is contesting may not settle any such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with without the prior written consent of the Indemnified Party; and (c) Section 9.5 hereof shall be inapplicable. Whether or not the Indemnifying PartyParty does choose to so defend such claim, the parties hereto shall cooperate in the defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be requested in connection therewith. To the extent the Seller and the Shareholders are the Indemnified Party for any actual or threatened claim or demand by any third party, the Seller and the Shareholders shall have the right to control the prosecution of any counterclaim or right related to such a claim or demand, provided that the Seller and the Shareholders agree to reasonably cooperate with Buyer with respect to the prosecution of such counterclaim or right.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified Partythe notice, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall Person will have the right to effect defend the Indemnified Person against the Third Party Claim with counsel reasonably satisfactory to the Indemnified Person, provided, that (i) within thirty (30) days after the Indemnified Person has given notice of the Third Party Claim the Indemnifying Person acknowledges in writing to the Indemnified Person its unqualified obligation to indemnify the Indemnified Person as provided hereunder; provided, further, that, if after the Indemnifying Person acknowledges its unqualified obligation to indemnify the Indemnified Person and assumed the defense of such Third Party Claim, (A) new allegations or claims are asserted as part of such Third Party Claim, or (B) the original Third Party Claim is otherwise amended in a settlement or compromise over manner that materially increases the objection indemnification obligations of the Indemnifying Party; providedPerson under such Third Party Claim (including by reason of new facts having been discovered or being alleged), that if (i) then, in each such case, the Indemnifying Person shall either (1) notify the Indemnified Person of such changes to the original Third Party is contesting Claim, within fifteen (15) days of such claim changes, and turn over the defense of the Third Party Claim to the Indemnified Person, in good faith which case the Indemnifying Person shall be deemed not to have acknowledged its obligation to indemnify the Indemnified Person (except to the extent all or any portion of the original Third Party Claim has already been determined, compromised or settled), or (2) continue to defend such Third Party Claim, in which case the Indemnifying Person shall be deemed to have acknowledged its obligation to indemnify the Indemnified Person with respect to such Third Party Claim as so changed, (ii) the Indemnifying Person provides the Indemnified Person with evidence reasonably acceptable to the Indemnified Person that the Indemnifying Person will have the financial resources to defend against the Third Party has assumed Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages, and does not seek statutory, enhanced or treble damages or an injunction or other equitable relief, (iv) the Third Party Claim does not involve a class action lawsuit and (v) the Indemnifying Person conducts the defense from of the Third Party Claim actively and diligently. The Indemnifying Person will keep the Indemnified PartyPerson apprised of all material developments, including settlement offers, with respect to the Third-Party Claim and permit the Indemnified Person to participate in the defense of the Third Party Claim with counsel selected by it subject to the Indemnifying Person’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Person, provided, that if in the reasonable opinion of counsel to the Indemnified Person, (x) there are legal defenses available to an Indemnified Person that are different from or additional to those available to the Indemnifying Person; or (y) there exists a conflict of interest between the Indemnifying Person and the Indemnified Person that cannot be waived, the Indemnifying Person shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party waives any right to indemnity thereforPerson in each jurisdiction for which the Indemnified Person determines counsel is required. If the Indemnifying Person elects not to or is not entitled to defend such Third Party undertakes Claim, fails to promptly notify the Indemnified Person in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such mattersThird Party Claim, the Indemnified Person may, subject to Section 9.5(c), pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. The Member and Buyer shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or cooperate with each other expenses subsequently incurred by the Indemnified Party in all reasonable respects in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified any Third Party with the prior written consent of the Indemnifying PartyClaim.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified PartySubject to Sections 8.3(b)(i) - (iv), the Indemnifying Party shall be entitled may elect to compromise or defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by and with counsel of its own choosingreasonably satisfactory to the Indemnitee, but any Asserted Liability, and if the Indemnifying Party be entitled so elects to control the defense unless the Indemnified Party has relieved compromise or defend, the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed control the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity thereforof such Asserted Liability. If the Indemnifying Party undertakes elects to compromise or defend such Asserted Liability, it shall within fifteen (15) days (or sooner, if the nature of the Asserted Liability so requires) notify the Indemnitee of its intent to do so, and the Indemnitee shall cooperate in the compromise of, or defense of against, such matters, the Indemnified Party shall not, so long as Asserted Liability. If the Indemnifying Party does not abandon the defense thereofinitially elect within fifteen (15) days, be entitled to recover from the Indemnifying Party any legal may later elect to compromise or other expenses subsequently incurred by defend such Asserted Liability on the Indemnified giving of five (5) calendar days notice of its intention to do so to the Indemnitee and the Indemnitee shall cooperate in the compromise of, or defence against, such Asserted Liability. If the Indemnifying Party in connection with elects not to compromise or defend the Asserted Liability, fails to notify the Indemnitee of its election as herein provided or contests its obligation to indemnify under this Agreement, the Indemnitee may pay, compromise or defend such Asserted Liability and the Indemnitee shall have the right to control the defense thereof other than of such Asserted Liability. Notwithstanding the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.foregoing,
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled promptly to defend, contest or otherwise protect against any such matter at suit, action, investigation, claim or proceeding or its own cost and expense, and including the Indemnified Party must cooperate right to invoke any arbitration proceeding available in any such defense or other actionthe dispute. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, including reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided. However, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently substantially incurred by the Indemnified Indemnifying Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party. If Buyer and Seller are named jointly as defendants by a past, existing or purported franchisee in a court or arbitration proceeding and Buyer based on its evaluation of the franchisee's claim provides notice to Seller of an indemnification claim against Seller pursuant to Section 11.8 as to any liability arising out of the Franchisee's claim, Seller reserves the right in its sole discretion to fully settle and compromise the franchisee's claim as to both Seller and Buyer at any time during the proceeding.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter suit, action, --------------- investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled promptly to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, including the right to invoke any arbitration proceeding available in the dispute. The Indemnified Party shall give the Indemnifying Party access to all records relating to such claim and will cooperate fully with the Indemnifying Party in the defense of such claim and will assign to the Indemnifying Party rights against third parties which might have responsibility to the Indemnified Party must cooperate in any for such defense or other actionclaim. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or matter. If the Indemnifying Party fails to assume defense of the matter. In matter by the event end of the Indemnifying Party shall fail Notice Period after receiving the notice, as set forth in Section 8.04, relating to defendany such suit, contest action, ------------ investigation, claim or otherwise protect in a timely manner against any matterproceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof thereof, with counsel of its choosing, and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, including reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided. However, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such mattersmatters after the Indemnified Party has began the defense, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partythereof.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified Partythe notice, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall Person will have the right to effect defend the Indemnified Person against the Third Party Claim with counsel reasonably satisfactory to the Indemnified Person, provided, that (i) within thirty (30) days after the Indemnified Person has given notice of the Third Party Claim the Indemnifying Person acknowledges in writing to the Indemnified Person its unqualified obligation to indemnify the Indemnified Person as provided hereunder; provided, further, that, if after the Indemnifying Person acknowledges its unqualified obligation to indemnify the Indemnified Person and assumed the defense of such Third Party Claim, (A) new allegations or claims are asserted as part of such Third Party Claim, or (B) the original Third Party Claim is otherwise amended in a settlement or compromise over manner that materially increases the objection indemnification obligations of the Indemnifying Party; providedPerson under such Third Party Claim (including by reason of new facts having been discovered or being alleged), that if (i) then, in each such case, the Indemnifying Person shall either (1) notify the Indemnified Person of such changes to the original Third Party is contesting Claim, within fifteen (15) days of such claim changes, and turn over the defense of the Third Party Claim to the Indemnified Person, in good faith which case the Indemnifying Person shall be deemed not to have acknowledged its obligation to indemnify the Indemnified Person (except to the extent all or any portion of the original Third Party Claim has already been determined, compromised or settled), or (2) continue to defend such Third Party Claim, in which case the Indemnifying Person shall be deemed to have acknowledged its obligation to indemnify the Indemnified Person with respect to such Third Party Claim as so changed, (ii) the Indemnifying Person provides the Indemnified Person with evidence reasonably acceptable to the Indemnified Person that the Indemnifying Person will have the financial resources to defend against the Third Party has assumed Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages, and does not seek statutory, enhanced or treble damages or an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Person, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Person or have a material adverse effect on the Indemnified Person, (v) the Third Party Claim does not involve a supplier, customer, distributor, licensor, licensee, lessor or insurer of the Company or any Affiliate thereof or a Governmental Authority, (vi) the Third Party Claim does not involve a class action lawsuit and (vii) the Indemnifying Person conducts the defense from of the Third Party Claim actively and diligently. The Indemnifying Person will keep the Indemnified PartyPerson apprised of all material developments, including settlement offers, with respect to the Third Party Claim and permit the Indemnified Person to participate in the defense of the Third Party Claim with counsel selected by it subject to the Indemnifying Person’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Person, provided, that if in the reasonable opinion of counsel to the Indemnified Person, (x) there are legal defenses available to an Indemnified Person that are different from or additional to those available to the Indemnifying Person; or (y) there exists a conflict of interest between the Indemnifying Person and the Indemnified Person that cannot be waived, the Indemnifying Person shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party waives any right to indemnity thereforPerson in each jurisdiction for which the Indemnified Person determines counsel is required. If the Indemnifying Person elects not to or is not entitled to defend such Third Party undertakes Claim, fails to promptly notify the Indemnified Person in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such mattersThird Party Claim, the Indemnified Person may, subject to Section 10.5(c), pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. The Members and Parent shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or cooperate with each other expenses subsequently incurred by the Indemnified Party in all reasonable respects in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified any Third Party with the prior written consent of the Indemnifying PartyClaim.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Charge Enterprises, Inc.)
Right to Defend. Upon Subject to the terms of this Agreement, upon receipt of the notice, the Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim with counsel reasonably satisfactory to the Indemnified Party, provided, that (i) within thirty (30) days after the Indemnified Party has given notice of any matter the Third Party Claim the Indemnifying Party acknowledges in writing to the Indemnified Party its unqualified obligation to indemnify the Indemnified Party as provided hereunder (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages, and does not seek statutory, enhanced or treble damages or an injunction or other equitable relief, (iv) Losses are reasonably expected not to exceed the amount for which indemnification might the Indemnifying Party is liable hereunder, (v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Party or have a material adverse effect on the Indemnified Party, (vi) the Third Party Claim does not involve a supplier, franchisee, customer, distributor, licensor, licensee, lessor or insurer of the Company or any Affiliate thereof or a Governmental Entity, (vii) the Third Party Claim does not involve a class action lawsuit, and (viii) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently, and the Third Party Claim does not involve a criminal matter. The Indemnifying Party will keep the Indemnified Party apprised of all material developments, including settlement offers, with respect to the Third Party Claim and permit the Indemnified Party to participate in the defense of the Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be claimed by at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (1) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (2) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be entitled liable for the reasonable fees and expenses of counsel to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless each jurisdiction for which the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party determines counsel is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity thereforrequired. If the Indemnifying Party undertakes elects not to or is not entitled to 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 mattersThird Party Claim, the Indemnified Party shall notmay, so long as the Indemnifying subject to Section 10.6(c), pay, compromise, defend such Third Party does not abandon the defense thereofClaim and seek indemnification for any and all Damages based upon, be entitled arising from or relating to recover from the Indemnifying such Third Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying PartyClaim.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Fat Brands, Inc)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Indemnified Party shall be entitled have the option of electing to defend, contest or otherwise protect against any such matter at its own cost suit, action, investigation, claim or proceeding, with the costs and expenseexpenses of such defense to be borne by the Indemnifying Party, and the Indemnified Indemnifying Party must cooperate in any such defense or other action. The Indemnified Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Indemnified Party shall be entitled to control the defense unless otherwise determined by the Indemnified Party has relieved or if the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Indemnified Party fails to assume defense of the matter. In the event the Indemnifying Indemnified Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Indemnifying Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof thereof, and recover the reasonable cost thereof from the Indemnifying Party shall pay all costs thereof, including, without limitation, reasonable attorneys' ’ fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Indemnifying Party must send a written notice to the Indemnifying Indemnified Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Indemnified Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party upon the election of the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such mattersmatters upon the election of the Indemnified Party, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Sourcecorp Inc)
Right to Defend. Upon receipt of notice of any matter suit, action, --------------- investigation, claim or proceeding ("Action") for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter Action at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch Action, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding Action or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Samples: Stock Purchase Agreement (Seirios International Inc)
Right to Defend. Upon receipt of the Claim Notice, the Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim with counsel reasonably satisfactory to the Indemnified Party, provided, that (A) within thirty (30) days after the Indemnified Party has given notice of the Third Party Claim, the Indemnifying Party acknowledges in writing to the Indemnified Party its unqualified obligation to indemnify the Indemnified Party for such Third Party Claim as provided hereunder; provided, further, that, if after the Indemnifying Party acknowledges its unqualified obligation to indemnify the Indemnified Party and assume the defense of such Third Party Claim, (I) new allegations or claims are asserted as part of such Third Party Claim, or (II) the original Third Party Claim is otherwise amended in a manner that materially increases the indemnification obligations of the Indemnifying Party under such Third Party Claim (including by reason of new facts having been discovered or being alleged), then, in each such case, the Indemnifying Party shall either (x) notify the Indemnified Party of such changes to the original Third Party Claim, within fifteen (15) days of such changes, and turn over the defense of the Third Party Claim to the Indemnified Party, in which case the Indemnifying Party shall be deemed not to have acknowledged its obligation to indemnify the Indemnified Party (except to the extent all or any matter for portion of the original Third Party Claim has already been determined, compromised or settled), or (y) continue to defend such Third Party Claim, in which case the Indemnifying Party shall be deemed to have acknowledged its obligation to indemnify the Indemnified Party with respect to such Third Party Claim as so changed; (B) the Indemnifying Party certifies to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification might obligations hereunder; (C) the Third Party Claim involves only money damages, and does not seek statutory, enhanced or treble damages, an injunction or other equitable relief; (D) the Third Party Claim does not have a reasonable likelihood of resulting in indemnifiable losses that would result in the Indemnification Cap being exceeded; (E) settlement of, or an adverse judgment with respect to, the Third-Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Party, (F) the Third-Party Claim does not involve any criminal liability or any admission of criminal wrongdoing, or any civil claim commenced by a Governmental Authority; (G) the Third Party Claim does not involve a class action lawsuit; and (H) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. The Indemnifying Party will keep the Indemnified Party apprised of all material developments, including settlement offers, with respect to the Third Party Claim and permit the Indemnified Party to participate in the defense of the Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be claimed by 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 PartyParty that are different from or in addition 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 entitled liable for the reasonable fees and expenses of counsel to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless each jurisdiction for which the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party determines counsel is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity thereforrequired. If the Indemnifying Party undertakes elects not to or is not entitled to 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 mattersThird Party Claim, the Indemnified Party shall notmay defend such Third Party Claim and seek indemnification for any and all losses based upon, so long as arising from or relating to such Third Party Claim and, with the consent of the Indemnifying Party(which consent shall not be unreasonably withheld, conditioned or delayed), compromise or settle such Third Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or Claim. The Stockholder Representative and Acquiror shall cooperate with each other expenses subsequently incurred by the Indemnified Party in all reasonable respects in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified any Third Party with the prior written consent of the Indemnifying PartyClaim.
Appears in 1 contract
Right to Defend. Upon receipt of notice Promptly after acquiring knowledge of any matter for loss, action, suit, investigation, proceeding, demand, assessment, audit, judgment, or claim brought by a person or entity that is not a party to this Agreement (each a “Third Party Claim”) to which it may be liable, any party entitled to indemnification might be claimed by an hereunder (the “Indemnified Party”) shall give to the party obligated to indemnify hereunder (the “Indemnifying Party”) prompt written notice thereof; provided, that the failure to so notify such Indemnifying Party will not relieve such Indemnifying Party of its obligations under this Article 7, except to the extent that the Indemnifying Party shall be entitled demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such claim notice. Each Indemnifying Party shall, at its own expense, promptly defend, contest or otherwise protect against any such matter at its own cost and expenseThird Party Claim against which it has agreed to indemnify any Indemnified Party, and each Indemnifying Party shall receive from the Indemnified Party must cooperate all necessary and reasonable cooperation in said defense, including, but not limited to, the services of employees of the Indemnified Party who are familiar with the transactions out of which any such defense damage, loss, deficiency, liability, claim, encumbrance, penalty, cost, expense, action, suit, investigation, proceeding, demand, assessment, audit, judgment or other actionclaim may have arisen. The Indemnifying Party shall have the right to control the defense of any such third party proceeding unless it is relieved of its liability hereunder with respect to such defense by the Indemnified Party, and except for claims involving (i) non-monetary Damages sought against the Indemnified Party; or (ii) criminal allegations. The Indemnifying Party shall have the right, but not the obligationat its option, and, unless so relieved, to participate compromise or defend, at its own expense in defense thereof by its own counsel, any such matter involving the asserted liability to a third party of the Indemnified Party involving monetary damages but may not compromise or settle any matter involving equitable or injunctive recourse against the Indemnified Party without such party’s written consent. In the event that the Indemnifying Party shall undertake to compromise or defend any such asserted liability, it shall promptly notify the Indemnified Party of its intention to do so. In the event that an Indemnifying Party, after written notice of a Third Party Claim from an Indemnified Party, fails to take timely action to defend the same, the Indemnified Party shall have the right to defend the same by counsel of its own choosing, but at the cost and expense of the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matterParty. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch an event, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise asserted liability without the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party., such consent not to be unreasonably withheld, conditioned, or delayed. ARTICLE 8
Appears in 1 contract
Samples: Escrow Agreement (Comstock Holding Companies, Inc.)
Right to Defend. Upon Promptly after receipt by an indemnified party under this Section 4 of notice of the commencement of any matter for which indemnification might action (including any governmental action), such indemnified party shall, if a claim in respect thereof is to be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect made against any such matter at its own cost and expenseindemnifying party under this Section 4, deliver to the indemnifying party a written notice of the commencement thereof, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party indemnifying party shall have the right, but not the obligation, right to participate at its own expense in defense thereof and if the indemnifying party agrees in writing that it will be responsible for any costs, expenses, judgments, damages and losses incurred by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability indemnified party with respect to the particular matter or the Indemnifying Party fails such claim, jointly with any other indemnifying party similarly noticed, to assume the defense of thereof with counsel mutually satisfactory to the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofparties; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party indemnified party shall have the right to effect retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if the indemnified party reasonably believes that representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a settlement or compromise over the objection reasonable time of the Indemnifying Party; providedcommencement of any such action shall relieve such indemnifying party of any liability to the indemnified party under this Agreement only if and to the extent that such failure is prejudicial to its ability to defend such action, and the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that if (i) it may have to any indemnified party otherwise than under this Agreement. If an indemnified party notifies an indemnifying party in writing that such indemnified party elects to employ separate counsel at the Indemnifying Party is contesting such claim in good faith or (ii) expense of the Indemnifying Party has assumed indemnifying party as permitted by the defense from provisions of the Indemnified Partypreceding paragraph, the Indemnified Party waives any indemnifying party shall not have the right to indemnity therefor. If the Indemnifying Party undertakes assume the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal action or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs proceeding on behalf of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partysuch indemnified party.
Appears in 1 contract
Samples: Registration Rights Agreement (Rollerball International Inc)
Right to Defend. Upon receipt of notice of any matter In the event a party hereto elects to take responsibility for which indemnification might be claimed by an Indemnified defending either a Stockholder Disputed Claim or Buyer Disputed Claim pursuant to Section 13.d hereof, such party (the “Indemnifying Party, the Indemnifying Party ”) shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the other party (the “Indemnified Party Party”) must cooperate in any such defense or other action. 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 choosing, but the Indemnifying Party shall be entitled to control the defense (but shall keep the Indemnified Party informed as to the progress of the case and, if requested by the Indemnified Party, shall consult with the Indemnified Party as to the defenses intended to be asserted, the litigation strategies intended to be implemented and the settlement terms intended to be offered) unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event both the Indemnifying Party and Indemnified Party are parties to the action, the Indemnifying Party shall take immediate steps to attempt to have the applicable arbitor dismiss Indemnified Party from such action. If the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any monetary compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, party including reasonable attorneys' ’ fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified Partythe notice, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall Person will have the right to effect defend the Indemnified Person against the Third Party Claim with counsel reasonably satisfactory to the Indemnified Person, provided, that (i) within thirty (30) days after the Indemnified Person has given notice of the Third Party Claim the Indemnifying Person acknowledges in writing to the Indemnified Person its unqualified obligation to indemnify the Indemnified Person as provided hereunder; provided, further, that, if after the Indemnifying Person acknowledges its unqualified obligation to indemnify the Indemnified Person and assumed the defense of such Third Party Claim, (A) new allegations or claims are asserted as part of such Third Party Claim, or (B) the original Third Party Claim is otherwise amended in a settlement or compromise over manner that materially increases the objection indemnification obligations of the Indemnifying Party; providedPerson under such Third Party Claim (including by reason of new facts having been discovered or being alleged), that if (i) then, in each such case, the Indemnifying Person shall either (I) notify the Indemnified Person of such changes to the original Third Party is contesting Claim, within fifteen (15) days of such claim changes, and turn over the defense of the Third Party Claim to the Indemnified Person, in good faith which case the Indemnifying Person shall be deemed not to have acknowledged its obligation to indemnify the Indemnified Person (except to the extent all or any portion of the original Third Party Claim has already been determined, compromised or settled), or (II) continue to defend such Third Party Claim, in which case the Indemnifying Person shall be deemed to have acknowledged its obligation to indemnify the Indemnified Person with respect to such Third Party Claim as so changed, (ii) the Indemnifying Person provides the Indemnified Person with evidence reasonably acceptable to the Indemnified Person that the Indemnifying Person will have the financial resources to defend against the Third Party has assumed Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages, and does not seek statutory, enhanced or treble damages or an injunction or other equitable relief, (iv) the Third Party Claim does not have a reasonable likelihood of resulting in indemnifiable Losses that would result in the Cap being exceeded or does not have a reasonable likelihood of resulting in indemnifiable Losses that would result in the Basket being exceeded; (v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Person, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Person or have a material adverse effect on the Indemnified Person, (vi) the Third Party Claim does not involve a supplier, customer, distributor, licensor, licensee, lessor or insurer of the Company or any Affiliate thereof or a Governmental Authority, (vii) the Third Party Claim does not involve a class action lawsuit; and (viii) the Indemnifying Person conducts the defense from of the Third Party Claim actively and diligently. The Indemnifying Person will keep the Indemnified PartyPerson apprised of all material developments, including settlement offers, with respect to the Third Party Claim and permit the Indemnified Person to participate in the defense of the Third Party Claim with counsel selected by it subject to the Indemnifying Person’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Person, provided, that if in the reasonable opinion of counsel to the Indemnified Person, (A) there are legal defenses available to an Indemnified Person that are different from or additional to those available to the Indemnifying Person; or (B) there exists a conflict of interest between the Indemnifying Person and the Indemnified Person that cannot be waived, the Indemnifying Person shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party waives any right to indemnity thereforPerson in each jurisdiction for which the Indemnified Person determines counsel is required. If the Indemnifying Person elects not to or is not entitled to defend such Third Party undertakes Claim, fails to promptly notify the Indemnified Person in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such mattersThird Party Claim, the Indemnified Person may, subject to Section 10.5(c), pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. The Transferors and Acquiror shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or cooperate with each other expenses subsequently incurred by the Indemnified Party in all reasonable respects in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified any Third Party with the prior written consent of the Indemnifying PartyClaim.
Appears in 1 contract
Samples: Stock Acquisition Agreement (Madison Technologies Inc.)
Right to Defend. Upon receipt of notice of If the facts giving rise to any matter such claim for which indemnification might be claimed involve any actual or threatened claim or demand by an any third party against the Indemnified Party, the Indemnifying Party shall be entitled (without prejudice to defend, contest or otherwise protect against any such matter at its own cost and expense, and the right of the Indemnified Party must cooperate to participate in any the defense of such claim or demand at its expense through counsel of its own choosing) to assume the defense of such claim or other action. The demand in the name of the Indemnified Party shall have at the right, but not the obligation, to participate at its own Indemnifying Party's expense in defense thereof by and through counsel of its own choosing, but which counsel shall be reasonably satisfactory to the Indemnified Party, if it gives written notice to the Indemnified Party within sixty (60) days after receipt of the Notice of Claim that the Indemnifying Party be entitled intends to control assume the defense unless of such claim and acknowledges its liability to indemnify the Indemnified Party has relieved the Indemnifying Party for any losses resulting from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofclaim; provided, however, that the Indemnified Party must send a written notice to if the Indemnifying Party does not elect to assume the defense of any such proposed settlement or compromiseclaim, which settlement or compromise then (a) the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement participate in the defense of such claim or compromise over demand at its expense through counsel of its own choosing, provided the objection Indemnified Party shall control the defense of such claim, (b) the Indemnified Party may settle any such claim without the consent of the Indemnifying Party; provided, that if (i) however, the Indemnifying Party is contesting may not settle any such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with without the prior written consent of the Indemnified Party; and (c) Section 9.5 hereof shall be inapplicable. Whether or not the Indemnifying PartyParty does choose to so defend such claim, the parties hereto shall cooperate in the defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be requested in connection therewith. To the extent Parent or Surviving Corporation is the Indemnified Party for any actual or threatened claim or demand by any third party, Parent and Surviving Corporation shall have the right to control the prosecution of any counterclaim or right related to such a claim or demand, provided that Parent and Surviving Corporation agree to reasonably cooperate with the Company or the Shareholders with respect to the prosecution of such counterclaim or right.
Appears in 1 contract
Right to Defend. Upon receipt of notice of If the facts giving rise to any matter such claim for which indemnification might be claimed involve any actual or threatened claim or demand by an any third party against the Indemnified Party, the Indemnifying Party shall be entitled (without prejudice to defend, contest or otherwise protect against any such matter at its own cost and expense, and the right of the Indemnified Party must cooperate to participate in any the defense of such claim or demand at its expense through counsel of its own choosing) to assume the defense of such claim or other action. The demand in the name of the Indemnified Party shall have at the right, but not the obligation, to participate at its own Indemnifying Party's expense in defense thereof by and through counsel of its own choosing, but which counsel shall be reasonably satisfactory to the Indemnified Party, if it gives written notice to the Indemnified Party within forty-five (45) days after receipt of the Notice of Claim that the Indemnifying Party be entitled intends to control assume the defense unless of such claim and acknowledges its liability to indemnify the Indemnified Party has relieved the Indemnifying Party for any losses resulting from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofclaim; provided, however, that the Indemnified Party must send a written notice to if the Indemnifying Party does not elect to assume the defense of any such proposed settlement or compromiseclaim, which settlement or compromise then (a) the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement participate in the defense of such claim or compromise over demand at its expense through counsel of its own choosing, provided the objection Indemnified Party shall control the defense of such claim, (b) the Indemnified Party may settle any such claim without the consent of the Indemnifying Party; provided, that if (i) however, the Indemnifying Party is contesting may not settle any such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with without the prior written consent of the Indemnified Party; and (c) Section 10.5 hereof shall be inapplicable. Whether or not the Indemnifying PartyParty does choose to so defend such claim, the parties hereto shall cooperate in the defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be requested in connection therewith. To the extent the Company is the Indemnified Party for any actual or threatened claim or demand by any third party, the Company shall have the right to control the prosecution of any counterclaim or right related to such a claim or demand, provided that the Company agrees to reasonably cooperate with the Stockholders with respect to the prosecution of such counterclaim or right.
Appears in 1 contract
Right to Defend. Upon receipt of If the facts giving rise to any claim for indemnification shall involve any actual claim or demand by any third party against a Buyer Indemnified Party or Shareholder Indemnified Party (referred to herein as an "Indemnified Party"), then the Indemnified Party will give prompt written notice of any matter such claim to the indemnifying party, which notice shall set forth in reasonable detail the nature, basis and amount of such claim (the "Notice of Third Party Claim"); provided that the failure to provide such Notice of Third Party Claim shall only relieve the indemnifying party of its or his obligation to indemnify for which indemnification might be claimed such claim only to the extent that such indemnifying party has been prejudiced by an such Indemnified Party, 's failure to give the Indemnifying Notice of Third Party shall be entitled Claim as required. The indemnifying party receiving such Notice of Third Party Claim may (without prejudice to defend, contest or otherwise protect against the right of any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by through counsel of its own choosing, but the Indemnifying Party be entitled to control ) undertake the defense unless of such claims or actions at its expense with counsel chosen and paid by its giving written notice (the "Election to Defend") to the Indemnified Party has relieved within thirty (30) days after the Indemnifying date the Notice of Third Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofClaim is deemed received; provided, however, that the indemnifying party receiving the Notice of Third Party Claim may not settle such claims or actions without the consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed, except if the sole relief provided is monetary damages to be borne solely by the indemnifying party; and, provided further, if the defendants in any action include both the indemnifying party and the Indemnified Party, and the Indemnified Party must send shall have reasonably concluded that counsel selected by the indemnifying party has a written notice conflict of interest because of the availability of different or additional defenses to the Indemnifying parties, the Indemnified Party of any such proposed settlement or compromise, which settlement or compromise shall cooperate in the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt defense of such notice. Failure claim and shall make available to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The the indemnifying party pertinent information under its control relating thereto, but the Indemnified Party shall have the right to effect a settlement retain its own counsel and to control its defense and shall be entitled to be reimbursed for all reasonable costs and expenses incurred in such separate defense. In no event will the provisions of this Article reduce or compromise over lessen the objection obligations of the Indemnifying Party; providedparties under this Article, that if prior to the expiration of the foregoing thirty (i30) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Partyday notice period, the Indemnified Party waives furnishing the Notice of Third Party Claim responds to a third party claim if such action is reasonably required to minimize damages or avoid a forfeiture or penalty or because of any right to indemnity thereforrequirements imposed by law. If the Indemnifying indemnifying party receiving the Notice of Third Party undertakes Claim does not duly give the defense of Election to Defend as provided above, then it will be deemed to have irrevocably waived its right to defend or settle such mattersclaims, but it will have the right, at its expense, to attend, but not otherwise to participate in, proceedings with such third parties; and if the indemnifying party does duly give the Election to Defend, then the Indemnified Party shall notgiving the Notice of Third Party Claim will have the right at its expense, so long as the Indemnifying Party does to attend, but not abandon the defense thereofotherwise to participate in, such proceedings. The parties to this Agreement will not be entitled to recover from dispute the Indemnifying Party amount of any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the Damages (including reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partyattorney's fees and expenses) related to such third party claim resolved as provided above.
Appears in 1 contract
Right to Defend. Upon receipt If any claim is brought against a Party, then the other Party shall be entitled to participate in, and, unless a conflict of notice interest between the Parties may exist with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnitee in accordance with this Section 24.5. An Indemnitee shall provide Notice to the Indemnifying Party, within thirty (30) Days after receiving Notice of the commencement of any matter for legal action or of any claims or threatened claims against such Indemnitee in respect of which indemnification might may be claimed sought pursuant to the foregoing provisions of this Article 24 or any other provision of this Agreement providing for an indemnity (such notice, a “Claim Notice”). The Indemnitee's failure to give, or tardiness in giving, such *** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. 97 Claim Notice will reduce the liability of the Indemnifying Party only by an Indemnified the amount of damages attributable and prejudicial to such failure or tardiness, but shall not otherwise relieve the Indemnifying Party from any liability that it may have under this Agreement. If the Indemnifying Party assumes the defense, the Indemnitee shall have the right to employ separate counsel in any such proceeding and to participate in (but not control) the defense of such claim, but the fees and expenses of such counsel shall be borne by the Indemnitee unless the Indemnifying Party agrees otherwise; provided that if the named parties to any such proceeding (including any impleaded parties) include both the Indemnitee and the Indemnifying Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost requires that the same counsel represent both the Indemnitee and expensethe Indemnifying Party, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof representation of both parties by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise counsel would be inappropriate due to actual or settlement thereof and recover potential differing interests between them, then the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party Indemnitee shall have the right to effect a settlement or compromise over retain its own counsel at the objection cost and expense of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes does not assume the defense of the Indemnitee, does not diligently prosecute such defense, or if a conflict precludes counsel for Indemnifying Party from providing the defense, then the Indemnitee shall have the absolute right to control the defense of such mattersclaim and the fees and expenses of such defense, including reasonable attorneys' fees of the Indemnified Party Indemnitee's counsel, reasonable costs of investigation, court costs and other costs of suit, arbitration, dispute resolution or other proceeding, and any reasonable amount determined to be owed by Indemnitee pursuant to such claim, shall notbe borne by the Indemnifying Party, so long as provided that the Indemnifying Party does shall be entitled, at its expense, to participate in (but not abandon the control) such defense thereof, be entitled to recover from and the Indemnifying Party shall reimburse the Indemnitee on a monthly basis for such costs and expenses. Subject to all of the foregoing provisions of this Section 24.5 as between the Parties, the Indemnifying Party shall control the settlement of all claims, in coordination with any legal insurer as required under the applicable insurance policies in Article 23 as to which it has assumed the defense; provided that to the extent the Indemnifying Party, in relation to such insurer, controls settlement: (a) such settlement shall include a dismissal of the claim and an explicit release from the party bringing such claim or other expenses subsequently incurred by proceedings of all Indemnitees; and (b) the Indemnified Indemnifying Party shall not conclude any settlement without the prior approval of the Indemnitee, which approval shall not be unreasonably withheld or delayed; provided further that except as provided in connection with the preceding sentence concerning the Indemnifying Party's failure to assume or to diligently prosecute the defense thereof other than of any claim, no Indemnitee seeking reimbursement pursuant to the reasonable costs of investigation undertaken by the Indemnified Party with foregoing indemnity shall, without the prior written consent of the Indemnifying Party, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, claim, suit, investigation or proceeding for which indemnity is afforded hereunder unless such Indemnitee reasonably believes that the matter in question involves potential criminal liability against such Indemnitee. Other than as provided in this Section 24.5, Indemnifying Party shall not settle any claim without the prior written approval of the Indemnitee, which approval shall not be unreasonably withheld, delayed or conditioned. The Indemnitee shall provide reasonable assistance to the Indemnifying Party when the Indemnifying Party so requests, at the Indemnifying Party's expense, in connection with such legal action or claim, including executing any powers-of-attorney or other documents required by the Indemnifying Party with regard to the defense or indemnity obligations.
Appears in 1 contract
Samples: Procurement and Construction Agreement (Sunpower Corp)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Indemnified Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost suit, action, investigation, claim or proceeding, with the costs and expenseexpenses of such defense to be borne by the Indemnifying Party, and the Indemnified Indemnifying Party must cooperate in any such defense or other action. The Indemnified Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Indemnified Party shall be entitled to control the defense unless otherwise determined by the Indemnified Party has relieved or if the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Indemnified Party fails to assume defense of the matter. In If the event the Indemnifying Indemnified Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, then the Indemnified Indemnifying Party shall have the right, but not the obligation, thereafter to defend, to contest or otherwise to protect against the same and make any compromise or settlement thereof, and shall pay all costs thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' ’ fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Indemnifying Party must send a written notice to the Indemnifying Indemnified Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Indemnified Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that however, that, if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party upon the election of the Indemnified Party, then the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such mattersmatters upon the election of the Indemnified Party, then the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (SINO-American Development CORP)
Right to Defend. Upon receipt of notice of any matter suit, action, --------------- investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled promptly to defend, contest or otherwise protect against any such matter at suit, action, investigation, claim or proceeding or its own cost and expense, and including the Indemnified Party must cooperate right to invoke any arbitration proceeding available in any such defense or other actionthe dispute. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, including reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided. However, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; , provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity indemnity. therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Samples: Employment Agreement (Fyi Inc)
Right to Defend. Upon receipt If any claim is brought against a Party, then the other Party shall be entitled to participate in, and, unless a conflict of notice interest between the Parties may exist with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnitee in accordance with this Section 24.5. An Indemnitee shall provide Notice to the Indemnifying Party, within *** after receiving Notice of the commencement of any matter for legal action or of any claims or threatened claims against such Indemnitee in respect of which indemnification might may be claimed sought pursuant to the foregoing provisions of this Article 24 or any other provision of this Agreement providing for an indemnity (such notice, a “Claim Notice”). The Indemnitee's failure to give, or tardiness in giving, such Claim Notice will reduce the liability of the Indemnifying Party only by an Indemnified the amount of damages attributable and prejudicial to such failure or tardiness, but shall not otherwise relieve the Indemnifying Party from any liability that it may have under this Agreement. If the Indemnifying Party assumes the defense, the Indemnitee shall have the right to employ separate counsel in any such proceeding and to participate in (but not control) the defense of such claim, but the fees and expenses of such counsel shall be borne by the Indemnitee unless the Indemnifying Party agrees otherwise; provided that if the named parties to any such proceeding (including any impleaded parties) include both the Indemnitee and the Indemnifying Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost requires that the same counsel represent both the Indemnitee and expensethe Indemnifying Party, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof representation of both parties by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise counsel would be inappropriate due to actual or settlement thereof and recover potential differing interests between them, then the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party Indemnitee shall have the right to effect a settlement or compromise over retain its own counsel at the objection cost and expense of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes does not assume the defense of the Indemnitee, does not diligently prosecute such defense, or if a conflict precludes counsel for Indemnifying Party from providing the defense, then the Indemnitee shall have the absolute right to control the defense of such mattersclaim and the fees and expenses of such defense, including reasonable attorneys' fees of the Indemnified Party Indemnitee's counsel, reasonable costs of investigation, court costs and other costs of suit, arbitration, dispute resolution or other proceeding, and any reasonable amount determined to be owed by Indemnitee pursuant to such claim, shall notbe borne by the Indemnifying Party, so long as provided that the Indemnifying Party does shall be entitled, at its expense, to participate in (but not abandon control) such defense and the defense thereofIndemnifying *** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. 86 Party shall reimburse the Indemnitee on a monthly basis for such costs and expenses. Subject to all of the foregoing provisions of this Section 24.5 as between the Parties, be entitled to recover from the Indemnifying Party shall control the settlement of all claims, in coordination with any legal insurer as required under the applicable insurance policies in Article 23 as to which it has assumed the defense; provided that to the extent the Indemnifying Party, in relation to such insurer, controls settlement: (a) such settlement shall include a dismissal of the claim and an explicit release from the party bringing such claim or other expenses subsequently incurred by proceedings of all Indemnitees; and (b) the Indemnified Indemnifying Party shall not conclude any settlement without the prior approval of the Indemnitee, which approval shall not be unreasonably withheld or delayed; provided further that except as provided in connection with the preceding sentence concerning the Indemnifying Party's failure to assume or to diligently prosecute the defense thereof other than of any claim, no Indemnitee seeking reimbursement pursuant to the reasonable costs of investigation undertaken by the Indemnified Party with foregoing indemnity shall, without the prior written consent of the Indemnifying Party, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, claim, suit, investigation or proceeding for which indemnity is afforded hereunder unless such Indemnitee reasonably believes that the matter in question involves potential criminal liability against such Indemnitee. Other than as provided in this Section 24.5, Indemnifying Party shall not settle any claim without the prior written approval of the Indemnitee, which approval shall not be unreasonably withheld, delayed or conditioned. The Indemnitee shall provide reasonable assistance to the Indemnifying Party when the Indemnifying Party so requests, at the Indemnifying Party's expense, in connection with such legal action or claim, including executing any powers-of-attorney or other documents required by the Indemnifying Party with regard to the defense or indemnity obligations.
Appears in 1 contract
Samples: Engineering, Procurement and Construction Agreement (Sunpower Corp)
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified PartySubject to Section 8.3(b)(i) — (iv), the Indemnifying Party shall be entitled may elect to compromise or defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by and with counsel of its own choosingreasonably satisfactory to the Indemnitee, but any Asserted Liability, and if the Indemnifying Party be entitled so elects to control the defense unless the Indemnified Party has relieved compromise or defend, the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed control the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity thereforof such Asserted Liability. If the Indemnifying Party undertakes elects to compromise or defend such Asserted Liability, it shall within fifteen (15) days (or sooner, if the nature of the Asserted Liability so requires) notify the Indemnitee of its intent to do so, and the Indemnitee shall cooperate in the compromise of, or defense of against, such matters, the Indemnified Party shall not, so long as Asserted Liability. If the Indemnifying Party does not abandon the defense thereofinitially elect within fifteen (15) days, be entitled to recover from the Indemnifying Party any legal may later elect to compromise or other expenses subsequently incurred by defend such Asserted Liability on the Indemnified giving of five (5) calendar days notice of its intention to do so to the Indemnitee and the Indemnitee shall cooperate in the compromise of, or defence against, such Asserted Liability. If the Indemnifying Party in connection with elects not to compromise or defend the Asserted Liability, fails to notify the Indemnitee of its election as herein provided or contests its obligation to indemnify under this Agreement, the Indemnitee may pay, compromise or defend such Asserted Liability and the Indemnitee shall have the right to control the defense thereof other than of such Asserted Liability. Notwithstanding the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.foregoing,
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified Partythe notice, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall Person will have the right to effect defend the Indemnified Person against the Third Party Claim with counsel reasonably satisfactory to the Indemnified Person, provided, that (i) within thirty (30) days after the Indemnified Person has given notice of the Third Party Claim the Indemnifying Person acknowledges in writing to the Indemnified Person its unqualified obligation to indemnify the Indemnified Person as provided hereunder; provided, further, that, if after the Indemnifying Person acknowledges its unqualified obligation to indemnify the Indemnified Person and assumed the defense of such Third Party Claim, (A) new allegations or claims are asserted as part of such Third Party Claim, or (B) the original Third Party Claim is otherwise amended in a settlement or compromise over manner that materially increases the objection indemnification obligations of the Indemnifying Party; providedPerson under such Third Party Claim (including by reason of new facts having been discovered or being alleged), that if (i) then, in each such case, the Indemnifying Person shall either (I) notify the Indemnified Person of such changes to the original Third Party is contesting Claim, within fifteen (15) days of such claim changes, and turn over the defense of the Third Party Claim to the Indemnified Person, in good faith which case the Indemnifying Person shall be deemed not to have acknowledged its obligation to indemnify the Indemnified Person (except to the extent all or any portion of the original Third Party Claim has already been determined, compromised or settled), or (I) continue to defend such Third Party Claim, in which case the Indemnifying Person shall be deemed to have acknowledged its obligation to indemnify the Indemnified Person with respect to such Third Party Claim as so changed, (ii) the Indemnifying Person provides the Indemnified Person with evidence reasonably acceptable to the Indemnified Person that the Indemnifying Person will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages, and does not seek statutory, enhanced or treble damages or an injunction or other equitable relief, (iv) the Third Party Claim has assumed a reasonable likelihood of resulting in indemnifiable Losses that would result in the Cap being exceeded or does not have a reasonable likelihood of resulting in indemnifiable Losses that would result in the Basket being exceeded; or (v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Person, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Person or have a material adverse effect on the Indemnified Person, (vi) the Third Party Claim does not involve a supplier, customer, distributor, licensor, licensee, lessor or insurer of the Company or any Affiliate thereof or a Governmental Authority, (vii) the Third Party Claim does not involve a class action lawsuit and (viii) the Indemnifying Person conducts the defense from of the Third Party Claim actively and diligently. The Indemnifying Person will keep the Indemnified PartyPerson apprised of all material developments, including settlement offers, with respect to the Third Party Claim and permit the Indemnified Person to participate in the defense of the Third Party Claim with counsel selected by it subject to the Indemnifying Person’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Person, provided, that if in the reasonable opinion of counsel to the Indemnified Person, (A) there are legal defenses available to an Indemnified Person that are different from or additional to those available to the Indemnifying Person; or (B) there exists a conflict of interest between the Indemnifying Person and the Indemnified Person that cannot be waived, the Indemnifying Person shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party waives any right to indemnity thereforPerson in each jurisdiction for which the Indemnified Person determines counsel is required. If the Indemnifying Person elects not to or is not entitled to defend such Third Party undertakes Claim, fails to promptly notify the Indemnified Person in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such mattersThird Party Claim, the Indemnified Person may, subject to Section 9.5(c), pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. The Transferors and Acquiror shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or cooperate with each other expenses subsequently incurred by the Indemnified Party in all reasonable respects in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified any Third Party with the prior written consent of the Indemnifying PartyClaim.
Appears in 1 contract
Samples: Stock Acquisition Agreement (Optimus Healthcare Services, Inc.)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding, at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, including reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified Partythe notice, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall Person will have the right to effect a settlement or compromise over defend the objection of Indemnified Person against the Indemnifying Party; Third Party Claim with counsel reasonably satisfactory to the Indemnified Person, provided, that if (i) the Indemnifying Person provides the Indemnified Person with evidence reasonably acceptable to the Indemnified Person that the Indemnifying Person will have the financial resources to defend against the Third Party is contesting such claim in good faith or Claim and fulfill its indemnification obligations hereunder, (ii) the Third Party Claim involves only money damages, and does not seek statutory, enhanced or treble damages or an injunction or other equitable relief, (iii) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Person, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Person, (iv) the Third Party Claim does not involve a then-current supplier, customer, distributor, licensor, licensee, lessor or insurer of the Company or any Affiliate thereof, (v) the Third Party Claim does not involve a class action lawsuit and (vi) the Indemnifying Party has assumed Person conducts the defense from of the Third Party Claim actively and diligently. The Indemnifying Person will keep the Indemnified PartyPerson apprised of all material developments, including settlement offers, with respect to the Third Party Claim and permit the Indemnified Person to participate in the defense of the Third Party Claim with single counsel selected by it subject to the Indemnifying Person’s right to control the defense thereof. The fees and disbursements of such single counsel shall be at the expense of the Indemnified Person, provided, that if in the reasonable opinion of counsel to the Indemnified Person, (x) there are legal defenses available to an Indemnified Person that are different from or additional to those available to the Indemnifying Person; or (y) there exists a conflict of interest between the Indemnifying Person and the Indemnified Person that cannot be waived, the Indemnifying Person shall be liable for the reasonable fees and expenses of such counsel to the Indemnified Party waives any right to indemnity thereforPerson. If the Indemnifying Person elects not to or is not entitled to defend such Third Party undertakes Claim, fails to promptly notify the Indemnified Person in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such mattersThird Party Claim, the Indemnified Person may, subject to Section 10.5(c), pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. The Shareholders and Buyer shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or cooperate with each other expenses subsequently incurred by the Indemnified Party in all reasonable respects in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified any Third Party with the prior written consent of the Indemnifying PartyClaim.
Appears in 1 contract
Samples: Stock Purchase Agreement (Charge Enterprises, Inc.)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding ("Action") for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter Action at its own cost and expense, and the Indemnified Party must cooperate in any such -13- 14 defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch Action, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding Action or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Right to Defend. Upon receipt of If the facts giving rise to any such indemnification shall involve any actual claim or demand by any third party against a Buyer Indemnified Party or Shareholder Indemnified Party (referred to herein as an "Indemnified Party"), then the Indemnified Party will give prompt written notice of any matter such claim to the indemnifying party, which notice shall set forth in reasonable detail the nature, basis and amount of such claim (the "Notice of Third Party Claim"). It is a condition precedent to the applicable indemnifying party's obligation to indemnify the applicable Indemnified Party for which indemnification might be claimed such claim that such Indemnified Party timely provide to such indemnifying party the applicable Notice of Third Party Claim, provided that the failure to provide such Notice of Third Party Claim shall relieve such indemnifying party of its or his obligation to indemnify for such claim only to the extent that such indemnifying party has been prejudiced by an such Indemnified Party, 's failure to give the Indemnifying Notice of Third Party shall be entitled Claim as required. The indemnifying party receiving such Notice of Third Party Claim may (without prejudice to defend, contest or otherwise protect against the right of any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by through counsel of its own choosing, but the Indemnifying Party be entitled to control ) undertake the defense unless of such claims or actions at its expense with counsel chosen and paid by its giving written notice (the "Election to Defend") to the Indemnified Party has relieved within thirty (30) days after the Indemnifying date the Notice of Third Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofClaim is deemed received; provided, however, that the indemnifying party receiving the Notice of Third Party Claim may not settle such claims or actions without the consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed, except if the sole relief provided is monetary damages to be borne solely by the indemnifying party; and, provided further, if the defendants in any action include both the indemnifying party and the Indemnified Party, and the Indemnified Party must send shall have reasonably concluded that counsel selected by the indemnifying party has a written notice conflict of interest because of the availability of different or additional defenses to the Indemnifying parties, the Indemnified Party of any such proposed settlement or compromise, which settlement or compromise shall cooperate in the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt defense of such notice. Failure claim and shall make available to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The the indemnifying party pertinent information under its control relating thereto, but the Indemnified Party shall have the right to effect a settlement its own counsel and to control its defense and shall be entitled to be reimbursed for all reasonable costs and expenses incurred in such separate defense. In no event will the provisions of this Article reduce or compromise over lessen the objection obligations of the Indemnifying Party; providedparties under this Article, that if prior to the expiration of the foregoing thirty (i30) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Partyday notice period, the Indemnified Party waives furnishing the Notice of Third Party Claim responds to a third party claim if such action is reasonably required to minimize damages or avoid a forfeiture or penalty or because of any right to indemnity thereforrequirements imposed by law. If the Indemnifying indemnifying party receiving the Notice of Third Party undertakes Claim does not duly give the defense of Election to Defend as provided above, then it will be deemed to have irrevocably waived its right to defend or settle such mattersclaims, but it will have the right, at its expense, to attend, but not otherwise to participate in, proceedings with such third parties; and if the indemnifying party does duly give the Election to Defend, then the Indemnified Party shall notgiving the Notice of Third Party Claim will have the right at its expense, so long as the Indemnifying Party does to attend, but not abandon the defense thereofotherwise to participate in, such proceedings. The parties to this Agreement will not be entitled to recover from dispute the Indemnifying Party amount of any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the Damages (including reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partyattorney's fees and expenses) related to such third party claim resolved as provided above.
Appears in 1 contract
Samples: Stock Purchase Agreement (Air Industries Group, Inc.)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim, or proceeding involving a Person who is not a Party for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled promptly to defend, contest contest, or otherwise protect against any such matter suit, action, investigation, claim, or proceeding at its the Indemnifying Party's own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but and shall have the right to approve counsel selected by the Indemnifying Party be entitled and the right to control approve the defense unless settlement of any matter that does not include as a term and condition thereof the unconditional release of the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matterParty. In the event the Indemnifying Party shall fail to defend, contest contest, or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim, or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest contest, or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party includingParty, without limitation, including reasonable attorneys' fees, disbursements fees and all amounts paid as a result of such suit, action, investigation, claim claim, or proceeding or the compromise or settlement thereof; provided, however, . In the event that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Samples: Capital and Investment Agreement (Grant Prideco Inc)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event If the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, party including reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) 30 days of its receipt of such written notice. Failure A failure by the Indemnifying Party to reject such notice settlement or compromise within such ten (10) 30 day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Daisytek International Corporation /De/)
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified Partythe notice, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall Person will have the right to effect defend the Indemnified Person against the Third Party Claim with counsel reasonably satisfactory to the Indemnified Person, provided, that (i) within thirty (30) days after the Indemnified Person has given notice of the Third Party Claim the Indemnifying Person acknowledges in writing to the Indemnified Person its unqualified obligation to indemnify the Indemnified Person as provided hereunder; provided, further, that, if after the Indemnifying Person acknowledges its unqualified obligation to indemnify the Indemnified Person and assumed the defense of such Third Party Claim, (A) new allegations or claims are asserted as part of such Third Party Claim, or (B) the original Third Party Claim is otherwise amended in a settlement or compromise over manner that materially increases the objection indemnification obligations of the Indemnifying Party; providedPerson under such Third Party Claim (including by reason of new facts having been discovered or being alleged), that if (i) then, in each such case, the Indemnifying Person shall either (I) notify the Indemnified Person of such changes to the original Third Party is contesting Claim, within fifteen (15) days of such claim changes, and turn over the defense of the Third Party Claim to the Indemnified Person, in good faith which case the Indemnifying Person shall be deemed not to have acknowledged its obligation to indemnify the Indemnified Person (except to the extent all or any portion of the original Third Party Claim has already been determined, compromised or settled), or (I) continue to defend such Third Party Claim, in which case the Indemnifying Person shall be deemed to have acknowledged its obligation to indemnify the Indemnified Person with respect to such Third Party Claim as so changed, (ii) the Indemnifying Person provides the Indemnified Person with evidence reasonably acceptable to the Indemnified Person that the Indemnifying Person will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages, and does not seek statutory, enhanced or treble damages or an injunction or other equitable relief, (iv) the Third Party Claim has assumed a reasonable likelihood of resulting in indemnifiable Losses that would result in the Cap being exceeded or does not have a reasonable likelihood of resulting in indemnifiable Losses that would result in the Basket being exceeded; or (v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Person, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Person or have a material adverse effect on the Indemnified Person, (vi) the Third Party Claim does not involve a supplier, customer, distributor, licensor, licensee, lessor or insurer of the Company or any Affiliate thereof or a Governmental Authority, (vii) the Third Party Claim does not involve a class action lawsuit and (viii) the Indemnifying Person conducts the defense from of the Third Party Claim actively and diligently. The Indemnifying Person will keep the Indemnified PartyPerson apprised of all material developments, including settlement offers, with respect to the Third Party Claim and permit the Indemnified Person to participate in the defense of the Third Party Claim with counsel selected by it subject to the Indemnifying Person’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Person, provided, that if in the reasonable opinion of counsel to the Indemnified Person, (A) there are legal defenses available to an Indemnified Person that are different from or additional to those available to the Indemnifying Person; or (B) there exists a conflict of interest between the Indemnifying Person and the Indemnified Person that cannot be waived, the Indemnifying Person shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party waives any right to indemnity thereforPerson in each jurisdiction for which the Indemnified Person determines counsel is required. If the Indemnifying Person elects not to or is not entitled to defend such Third Party undertakes Claim, fails to promptly notify the Indemnified Person in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such mattersThird Party Claim, the Indemnified Person may, subject to Section 10.5(c), pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. The Transferors and Acquiror shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or cooperate with each other expenses subsequently incurred by the Indemnified Party in all reasonable respects in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified any Third Party with the prior written consent of the Indemnifying PartyClaim.
Appears in 1 contract
Samples: Stock Acquisition Agreement (Charge Enterprises, Inc.)
Right to Defend. Upon receipt of notice of If the facts giving rise to any matter such claim for which indemnification might be claimed involve any actual or threatened claim or demand by an any third party against the Indemnified Party, the Indemnifying Party shall be entitled (without prejudice to defend, contest or otherwise protect against any such matter at its own cost and expense, and the right of the Indemnified Party must cooperate to participate in any the defense of such claim or demand at its expense through counsel of its own choosing) to assume the defense of such claim or other action. The demand in the name of the Indemnified Party shall have at the right, but not the obligation, to participate at its own Indemnifying Party's expense in defense thereof by and through counsel of its own choosing, but which counsel shall be reasonably satisfactory to the Indemnified Party, if it gives written notice to the Indemnified Party within forty-five (45) days after receipt of the Notice of Claim that the Indemnifying Party be entitled intends to control assume the defense unless of such claim and acknowledges its liability to indemnify the Indemnified Party has relieved the Indemnifying Party for any losses resulting from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofclaim; provided, however, that the Indemnified Party must send a written notice to if the Indemnifying Party does not elect to assume the defense of any such proposed settlement or compromiseclaim, which settlement or compromise then (a) the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement participate in the defense of such claim or compromise over demand at its expense through counsel of its own choosing, provided the objection Indemnified Party shall control the defense of such claim, (b) the Indemnified Party may settle any such claim without the consent of the Indemnifying Party; provided, that if (i) however, the Indemnifying Party is contesting may not settle any such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with without the prior written consent of the Indemnified Party; and (c) Section 9.5 hereof shall be inapplicable. Whether or not the Indemnifying PartyParty does choose to so defend such claim, the parties hereto shall cooperate in the defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be requested in connection therewith. To the extent Seller is the Indemnified Party for any actual or threatened claim or demand by any third party, Seller shall have the right to control the prosecution of any counterclaim 17 or right related to such a claim or demand, provided that Seller agrees to reasonably cooperate with Shareholder with respect to the prosecution of such counterclaim or right.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled promptly to defenddefend against such suit, contest action, investigation, claim, or otherwise protect against any such matter proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense a defence thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect defend in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest contest, or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party includingParty, without limitation, including reasonable attorneys' fees, disbursements fees and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, . In the event that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense defence of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense defence thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party. No settlement to be entered into by the Indemnified Party or the Indemnifying Party shall be executed unless the terms thereof include an unconditional release of the other party unless the other party consents thereto.
Appears in 1 contract
Samples: Assignment and Assumption Agreement (White Rock Enterprises LTD)
Right to Defend. Upon receipt of the notice, the Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim with counsel reasonably satisfactory to the Indemnified Party, provided, that (A) within thirty (30) days after the Indemnified Party has given notice of the Third Party Claim the Indemnifying Party acknowledges in writing to the Indemnified Party its unqualified obligation to indemnify the Indemnified Party as provided hereunder; provided, further, that, if after the Indemnifying Party acknowledges its unqualified obligation to indemnify the Indemnified Party and assume the defense of such Third Party Claim, (I) new allegations or claims are asserted as part of such Third Party Claim, or (II) the original Third Party Claim is otherwise amended in a manner that materially increases the indemnification obligations of the Indemnifying Party under such Third Party Claim (including by reason of new facts having been discovered or being alleged), then, in each such case, the Indemnifying Party shall either (aa) notify the Indemnified Party of such changes to the original Third Party Claim, within fifteen (15) days of such changes, and turn over the defense of the Third Party Claim to the Indemnified Party, in which case the Indemnifying Party shall be deemed not to have acknowledged its obligation to indemnify the Indemnified Party (except to the extent all or any matter for portion of the original Third Party Claim has already been determined, compromised or settled), or (bb) continue to defend such Third Party Claim, in which case the Indemnifying Party shall be deemed to have acknowledged its obligation to indemnify the Indemnified Party with respect to such Third Party Claim as so changed, (B) the Indemnifying Party certifies to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification might obligations hereunder, (C) the Third Party Claim involves only money damages, and does not seek statutory, enhanced or treble damages, an injunction or other equitable relief, (D) the Third Party Claim does not have a reasonable likelihood of resulting in indemnifiable losses that would result in the Indemnification Cap being exceeded; (E) settlement of, or an adverse judgment with respect to, the Third-Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Party, (F) the Third-Party Claim does not involve any criminal liability or any admission of criminal wrongdoing, or any civil claim commenced by a Governmental Entity; (G) the Third Party Claim does not involve a class action lawsuit; and (H) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. The Indemnifying Party will keep the Indemnified Party apprised of all material developments, including settlement offers, with respect to the Third Party Claim and permit the Indemnified Party to participate in the defense of the Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be claimed by 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 PartyParty that are different from or in addition 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 entitled liable for the reasonable fees and expenses of counsel to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless each jurisdiction for which the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party determines counsel is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity thereforrequired. If the Indemnifying Party undertakes elects not to or is not entitled to 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 mattersThird Party Claim, the Indemnified Party shall notmay defend such Third Party Claim and seek indemnification for any and all losses based upon, so long as arising from or relating to such Third Party Claim and, with the consent of the Indemnifying Party(which consent shall not be unreasonably withheld, conditioned or delayed), compromise or settle such Third Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or Claim. The Sellers and Purchaser shall cooperate with each other expenses subsequently incurred by the Indemnified Party in all reasonable respects in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified any Third Party with the prior written consent of the Indemnifying PartyClaim.
Appears in 1 contract
Samples: Equity Securities Purchase Agreement (CIPHERLOC Corp)
Right to Defend. Upon receipt If the facts giving rise to any claim for indemnification shall involve any actual or threatened action or demand by any third party against the indemnified party or any of notice of any matter for which indemnification might be claimed by an Indemnified Partyits affiliates, the Indemnifying Party indemnifying party or parties shall be entitled (without prejudice to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, indemnified party's right to participate at its own expense in defense thereof by through counsel of its own choosing), but at their expense and through a single counsel of their own choosing, to defend or prosecute such claim in the Indemnifying Party name of the indemnifying party or parties, or any of them, or if necessary, in the name of the indemnified party. In any event, the indemnified party shall give the indemnifying party advance written notice of any proposed compromise or settlement of any such claim. If the remedy sought in any such action or demand is solely money damages, the indemnifying party shall have fifteen (15) days after receipt of such notice of settlement to object to the proposed compromise or settlement, and if it does so object, the indemnifying party shall be required to undertake, conduct and control, though counsel of its own choosing and at its sole expense, the settlement or defense thereof, and the indemnified party shall cooperate with the indemnifying party in connection therewith. The Buyer shall be entitled to control set-off against the defense unless Notes, the Indemnified Party has relieved Consulting Agreement and/or the Indemnifying Party from liability with respect to the particular matter Real Estate Leases for all claims, losses, expenses and costs of indemnification or the Indemnifying Party fails to assume defense for breach of any of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same Sellers' and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromiseShareholder's covenants contained herein. The Indemnified Party Sellers' and the Shareholder's representations and warranties in SECTION 2.20 in EXHIBIT A hereto shall have expire on the right to effect a settlement or compromise over the objection fifth anniversary of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity thereforClosing Date. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent All of the Indemnifying Partyother Sellers' and Shareholder's representations and warranties shall survive the Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Smart Choice Automotive Group Inc)
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified Party, the Any Indemnifying Party shall be entitled to defendentitled, contest or otherwise protect against any such matter at its own sole cost and expense, to contest and the Indemnified Party must cooperate in defend by all appropriate legal proceedings any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability Claim with respect to the particular matter or the Indemnifying Party fails which any such indemnifying party is called upon to assume defense indemnify any of the matter. In indemnified parties under the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result provisions of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofthis agreement; provided, however, that notice of the intention so to contest shall be delivered by such indemnifying party to purchaser within twenty (20) days from the effective date of notice to telos by purchaser of the assertion of the claim; and provided further, however, that such right to contest and defend shall exist only if such Indemnifying Party have (i) admitted in writing to Purchaser the obligation of such Indemnifying Party to pay the indemnified obligations to the Indemnified Party must send a written notice Parties with respect to the Claim, and (ii) have provided the Indemnified Parties with satisfactory evidence of it's ability to pay any indemnity obligation that reasonably may arise under the Claim. Any such contest may be conducted in the name and on behalf of Purchaser. Such contest shall be conducted by reputable attorneys employed by such Indemnifying Party of any such proposed settlement or compromiseand reasonably acceptable to Purchaser, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party but Purchaser shall have the right to effect participate in such proceedings and to be represented by attorneys of its own choosing at its cost and expense. If, after such opportunity, any Indemnifying Party have not satisfied all requirements for the contest of a settlement or compromise over the objection claim by them (i.e., timely election, admission of liability and proof of ability regarding payment), then such Indemnifying Party shall (i) at their expense, except for travel expenses requested to be incurred by Purchaser, reasonably cooperate with Purchaser with respect to defense of the Claim, and (ii) be bound by the result obtained with respect to the Claim by Purchaser. At any time after the commencement of defense of any Claim, such Indemnifying Party may request Purchaser to accept a bona fide offer from the other parties to the Claim for a cash settlement payable solely from such Indemnifying Party (which places no burdens or restrictions on Purchaser and does not otherwise prejudice Purchaser), whereupon such action shall be taken unless Purchaser determines that the contest should be continued, and so notifies such Indemnifying Party in writing within fifteen (15) days of such request from such Indemnifying Party; provided. In the event that, after such a request by such Indemnifying Party for acceptance of a bona fide cash settlement offer, Purchaser determines that if the contest should be continued, such Indemnifying Party shall be liable for indemnity hereunder only to the extent of the lesser of (i) the amount which the other party to the contested Claim had agreed to accept in settlement as of the time the such Indemnifying Party is contesting such claim in good faith made its request therefore to Purchaser, or (ii) the such amount for which such Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right may be liable with respect to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred Claim by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent reason of the Indemnifying Partyprovisions hereof.
Appears in 1 contract
Right to Defend. Upon The Indemnifying Party shall have the obligation to assume the defense or settlement of any third-party claim, suit, action or proceeding in respect of which indemnity may be sought hereunder; provided, however, that the Indemnified Party shall at all times have the right, at its option, to participate fully therein; (ii) the Indemnified Party agrees to reasonably cooperate with the Indemnifying Party's defense and to make available to the Indemnifying Party and its counsel (at the Indemnifying Party’s expense) such books, records and other documents and information within the Indemnified Party’s direct or indirect control that are reasonably necessary or appropriate for such defense (in the judgment of counsel engaged by the Indemnifying Party), provided that the obligation of the Indemnified Party to make such information and documents available to the Indemnifying Party will not apply to particular documents and information to the extent compliance with such obligation would, in the reasonable opinion of the Indemnified Party’s counsel, (A) result in the loss of attorney-client privilege with respect to applicable such document or information, (B) result in a violation of the Indemnified Party’s then-existing confidentiality obligations to third parties with respect to such document or information or (C) result in a violation of or disclosure obligation under applicable securities laws, unless, in any such case, the Indemnifying Party executes and delivers to the Indemnified Party a written undertaking to maintain the confidentiality of the applicable documents and information in form and substance sufficient to avoid the loss of the attorney-client privilege, the violation of or disclosure obligation under the applicable obligation to a third party, or the violation of securities laws that would otherwise occur; and (iii) if the Indemnifying Party does not proceed diligently to defend the third-party claim, suit, action or proceeding within ten (10) days after receipt of notice of any matter for which indemnification might be claimed by an Indemnified Partysuch third-party claim, the Indemnifying Party shall be entitled to defendsuit, contest action or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matterproceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against undertake the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party defense of any such proposed settlement third-party claim, suit, action or compromise, which settlement or compromise the proceeding. The Indemnifying Party may reject, in its reasonable judgment, within ten (10) days shall not make any admission against interest or consent to entry of receipt of any judgment with respect to such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such third-party claim in good faith or (ii) the Indemnifying Party has assumed the defense from without the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior 's written consent of the Indemnifying Partyconsent.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Remark Media, Inc.)
Right to Defend. Upon receipt of notice of any matter suit, action, --------------- investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, including reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, proceeding or claim for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against assume control of the defense of any such matter suit, action, investigation, proceeding or claim at its own cost and expense, and to settle or compromise such suit, action, investigation, proceeding or claim in its discretion, subject to the consent of the Indemnified Party must cooperate in any such defense Party, which consent will not be unreasonably withheld or other actiondelayed. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume as- sume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, proceeding or claim, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party Party, including, without limitation, reasonable fees of attorneys' fees, consultants and technical representatives, disbursements and all amounts paid as a result of such suit, action, investigation, proceeding or claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partythereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Delphi Financial Group Inc/De)
Right to Defend. Upon receipt of notice of (a) If the facts giving rise to any matter claim for which indemnification might be claimed under this Article XVI shall involve any actual claim or demand by any third person against a Data443 Indemnified Party or a Seller Indemnified Party (referred to hereinafter as an “Indemnified Party”), the Indemnifying Party indemnifying party shall be entitled to defend, contest or otherwise protect against any written notice of such matter at its own cost and expense, and claim from the Indemnified Party must cooperate in any within fifteen (15) days after the Indemnified Party received notice of such defense or other actionthird party claim. The indemnifying party shall be entitled to (without prejudice to the right of any Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by with counsel if its own choosing) defend or prosecute such claim at its own expense and through counsel of its own choosing, but choosing if it gives written notice of its intention to do so no later than the Indemnifying Party be entitled to control time by which the defense unless interests of the Indemnified Party would be materially prejudiced as a result of its failure to have received such notice. However, if the defendants in any action shall include both the indemnifying party and the Indemnified Party, and the Indemnified Party shall have reasonably concluded, based on the advice of counsel, that counsel selected by the indemnifying party has relieved a conflict of interest because of the Indemnifying Party from liability with respect availability of different or additional defenses to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matterIndemnified Party, the Indemnified Party shall have the right, but not right to select separate counsel to participate in the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result defense of such suitaction on its behalf, action, investigation, claim or proceeding or at the compromise or settlement thereof; provided, however, that expense of the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromiseindemnifying party. The Indemnified Party shall have cooperate fully in the right to effect a settlement or compromise over the objection defense of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim and shall make available to the indemnifying party pertinent information under its control relating thereto, but shall be entitled to be reimbursed, as provided in good faith or (ii) this Article XVI, for all costs and expenses incurred by it in connection therewith. If the Indemnifying Indemnified Party has assumed the defense from the Indemnified Partyof any third party claim, the Indemnified Party waives it shall not enter into any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with settlement without the prior written consent of the Indemnifying indemnifying party, which consent shall not unreasonably be withheld. If the indemnifying party has assumed the defense of any third party claim, it shall not enter into any settlement without the prior written consent of the Indemnified Party, which consent shall not unreasonably be withheld, conditioned or delayed.
Appears in 1 contract
Samples: Asset Purchase Agreement (Data443 Risk Mitigation, Inc.)
Right to Defend. Upon receipt of notice of any matter suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, the Indemnifying Party shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten thirty (1030) days of receipt of such notice. Failure to reject such notice within such ten thirty (1030) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefortherefore. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Carreker Corp)
Right to Defend. Upon receipt (a) Subject to Section 13, if the facts giving rise to any claim for indemnification shall involve any actual or threatened action or demand by any third party against the indemnified party or any of notice of any matter for which indemnification might be claimed by an Indemnified Partyits Affiliates, the Indemnifying Party indemnifying party shall be entitled (without prejudice to defend, contest or otherwise protect against any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, indemnified party’s right to participate at its own expense in defense thereof by through counsel of its own choosing), but at the Indemnifying Party indemnifying party’s expense and through counsel of its own choosing (who shall be entitled reasonably acceptable to the indemnified party), to defend or prosecute such claim in the name of the indemnifying party or parties, or any of them, or if necessary, in the name of the indemnified party; provided, that except with respect to third party actions for which indemnification is provided in Sections 12.1(a)(iii) and/or 12.1(a)(iv) (as to which Seller shall have the absolute right to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suitactions), action, investigation, claim or proceeding or (a) the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party indemnifying party may reject, in its reasonable judgment, within ten (10) days of receipt only assume control of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that defense if (i) it acknowledges in writing to the Indemnifying Party is contesting indemnified party that all or any substantial portion of the subject matter of or, if awarded, relief sought in the particular claim may appropriately be the subject of an indemnification claim hereunder (provided that such claim acknowledgement shall be without prejudice to any fact thereafter discovered or fact or circumstance thereafter arising which would cause a determination that the indemnifying party does not have liability to indemnify for all or a portion of the Losses incurred by the indemnified party in good faith or the subject third party action), and (ii) if the Indemnifying Party has assumed the defense from the Indemnified PartyCap is applicable to such third party claim, the Indemnified Party waives amount of damages sought in such third party claim (or, if no specific amount of damages is demanded, or if the amount demanded is patently arbitrary, then a good faith estimate by the parties of the potential damages for which the indemnifying party may be liable hereunder), taken together with the estimated costs of defense thereof and the amount (determined in accordance with this Section 12.2(a)(ii)) of any right other unresolved claims for indemnification then pending as to indemnity therefor. If which the Indemnifying Party undertakes Cap is applicable, is less than 200% of the then remaining unused portion of the Cap applicable to the indemnifying party’s liability under this Section 12, and (b) the indemnifying party may not assume control of the defense of such matters, any third party claim involving criminal liability or in which equitable relief is sought against the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partyindemnified party.
Appears in 1 contract
Right to Defend. Upon receipt of a notice of any matter for which indemnification might be claimed by an Indemnified Partya claim under this section 6 (a "Claim Notice"), the party obliged to provide an indemnity under this Agreement (the "Indemnifying Party Party") shall be entitled to defendpromptly assume the defense of, and contest or otherwise protect against any against, such matter suit, action investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The other party (the "Indemnified Party Party") shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or in the Indemnifying Party fails to assume defense of event set out in the matternext sentence. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in within 10 days of the receipt of a timely manner Claim Notice against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and and, with the prior written approval of the Indemnifying Party, make any compromise or settlement thereof and subject to the limitations set out in sections 6.2 or 6.3, as the case may be, recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and including all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, thereof which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of was approved by the Indemnifying Party; provided. However, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter for which indemnification might be claimed by an Indemnified Party, the (a) The Indemnifying Party Person shall be entitled to defend, contest or otherwise protect against any assume and control the defense of such matter Third Party Claim at its own cost expense and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by through counsel of its own choosing, but the Indemnifying Party be entitled choice if it gives notice of its intention to control the defense unless do so to the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense Person within ten (10) business days of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, receipt of such notice from the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofPerson; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party LVCI shall have the right to effect control the defense to the extent of any Third Party Claim seeking equitable relief or remedial action. Notwithstanding the foregoing, if there exists, under applicable standards of professional conduct a settlement or compromise over conflict between the objection positions of such parties on any significant issue that would make it inappropriate in the reasonable judgment of counsel for the Indemnified Person, for the same counsel to represent both the Indemnified Person and the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified PartyPerson, the Indemnified Person shall be entitled to retain its own counsel at the Indemnifying Person's sole expense, provided that the Indemnifying Person shall not be required to pay for more than one such counsel for all Indemnified Persons in connection with such Third Party waives any right to indemnity thereforClaim. If the Indemnifying Person elects not to defend or otherwise deal with any Third Party undertakes Claim which relates to any Losses indemnified against hereunder, fails to notify the defense Indemnified Person of its election as provided herein or contests its obligation to indemnify the Indemnified Person against such mattersLosses, the Indemnified Person may defend against, negotiate, settle or otherwise deal with such Third Party Claim, provided that any payment made by the Indemnified Person with respect to such Third Party Claim shall not, so long as in and of itself establish that the Third Party Claim is subject to indemnification or determine the amount of Losses with respect thereto. If the Indemnified Person defends any Third Party Claim, then the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by Person shall reimburse the Indemnified Party in connection with Person for the defense thereof other than the reasonable costs expenses of investigation undertaken by the Indemnified Party with the prior written consent defending such Claim upon submission of the Indemnifying Partyperiodic bills.
Appears in 1 contract
Samples: Stock Purchase Agreement (Laser Vision Centers Inc)
Right to Defend. Upon receipt of If the facts giving rise to any such indemnification shall involve any actual claim or demand by any third party against a Buyer Indemnified Party or Shareholder Indemnified Party (referred to herein as an "Indemnified Party"), then the Indemnified Party will give prompt written notice of any matter such claim to the indemnifying party, which notice shall set forth in reasonable detail the nature, basis and amount of such claim (the "Notice of Third Party Claim"). It is a condition precedent to the applicable indemnifying party's obligation to indemnify the applicable Indemnified Party for which indemnification might be claimed such claim that such Indemnified Party timely provide to such indemnifying party the applicable Notice of Third Party Claim, provided that the failure to provide such Notice of Third Party Claim shall only relieve such indemnifying party of its or his obligation to indemnify for such claim only to the extent that such indemnifying party has been prejudiced by an such Indemnified Party, 's failure to give the Indemnifying Notice of Third Party shall be entitled Claim as required. The indemnifying party receiving such Notice of Third Party Claim may (without prejudice to defend, contest or otherwise protect against the right of any such matter at its own cost and expense, and the Indemnified Party must cooperate in any such defense or other action. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by through counsel of its own choosing, but the Indemnifying Party be entitled to control ) undertake the defense unless of such claims or actions at its expense with counsel chosen and paid by its giving written notice (the "Election to Defend") to the Indemnified Party has relieved within thirty (30) days after the Indemnifying date the Notice of Third Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any matter, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the reasonable cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereofClaim is deemed received; provided, however, that the indemnifying party receiving the Notice of Third Party Claim may not settle such claims or actions without the consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed, except if the sole relief provided is monetary damages to be borne solely by the indemnifying party; and, provided further, if the defendants in any action include both the indemnifying party and the Indemnified Party, and the Indemnified Party must send shall have reasonably concluded that counsel selected by the indemnifying party has a written notice conflict of interest because of the availability of different or additional defenses to the Indemnifying parties, the Indemnified Party of any such proposed settlement or compromise, which settlement or compromise shall cooperate in the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt defense of such notice. Failure claim and shall make available to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The the indemnifying party pertinent information under its control relating thereto, but the Indemnified Party shall have the right to effect a settlement retain its own counsel and to control its defense and shall be entitled to be reimbursed for all reasonable costs and expenses incurred in such separate defense. In no event will the provisions of this Article reduce or compromise over lessen the objection obligations of the Indemnifying Party; providedparties under this Article, that if prior to the expiration of the foregoing thirty (i30) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Partyday notice period, the Indemnified Party waives furnishing the Notice of Third Party Claim responds to a third party claim if such action is reasonably required to minimize damages or avoid a forfeiture or penalty or because of any right to indemnity thereforrequirements imposed by law. If the Indemnifying indemnifying party receiving the Notice of Third Party undertakes Claim does not duly give the defense of Election to Defend as provided above, then it will be deemed to have irrevocably waived its right to defend or settle such mattersclaims, but it will have the right, at its expense, to attend, but not otherwise to participate in, proceedings with such third parties; and if the indemnifying party does duly give the Election to Defend, then the Indemnified Party shall notgiving the Notice of Third Party Claim will have the right at its expense, so long as the Indemnifying Party does to attend, but not abandon the defense thereofotherwise to participate in, such proceedings. The parties to this Agreement will not be entitled to recover from dispute the Indemnifying Party amount of any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the Damages (including reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Partyattorney's fees and expenses) related to such third party claim resolved as provided above.
Appears in 1 contract
Right to Defend. Upon receipt of notice of any matter In the event a party hereto elects to take responsibility for which indemnification might be claimed by an Indemnified defending either a Stockholder Disputed Claim or Buyer Disputed Claim pursuant to Section 13.d hereof, such party (the "Indemnifying Party, the Indemnifying Party ") shall be entitled to defend, contest or otherwise protect against any such matter suit, action, investigation, claim or proceeding at its own cost and expense, and the other party (the "Indemnified Party Party") must cooperate in any such defense or other action. 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 choosing, but the Indemnifying Party shall be entitled to control the defense (but shall keep the Indemnified Party informed as to the progress of the case and, if requested by the Indemnified Party, shall consult with the Indemnified Party as to the defenses intended to be asserted, the litigation strategies intended to be implemented and the settlement terms intended to be offered) unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume defense of the matter. In the event both the Indemnifying Party and Indemnified Party are parties to the action, the Indemnifying Party shall take immediate steps to attempt to have the applicable arbitor dismiss Indemnified Party from such action. If the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any mattersuch suit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any monetary compromise or settlement thereof and recover the reasonable entire cost thereof from the Indemnifying Party including, without limitation, party including reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; provided, however, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject, in its reasonable judgment, within ten (10) days of receipt of such notice. Failure to reject such notice within such ten (10) day period shall be deemed an acceptance of such settlement or compromise. The Indemnified Party shall have the right to effect a settlement or compromise over the objection of the Indemnifying Party; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor. If the Indemnifying Party undertakes the defense of such matters, the Indemnified Party shall not, so long as the Indemnifying Party does not abandon the defense thereof, be entitled to recover from the Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than the reasonable costs of investigation undertaken by the Indemnified Party with the prior written consent of the Indemnifying Party.
Appears in 1 contract
