Third Party Actions. (a) If Purchaser becomes aware of a third party Action that Purchaser believes, in good faith, may result in a claim of indemnification for a Purchaser Indemnitee under this Article (a “Purchaser Indemnification Claim”), other than a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action, shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser shall seek the prior written consent of Seller (which consent may be withheld, conditioned or delayed by Seller in its sole discretion) in connection with Purchaser’s agreement to any settlement or compromise of any such third party Action. Any such written consent by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder. In the event that Purchaser shall fail to obtain such written consent of Seller, Purchaser may agree to any such settlement or compromise, and may make a Purchaser Indemnification Claim therefor, but the resolution of such claim (including whether and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this Article. (b) If Purchaser becomes aware of a third party Action that Purchaser believes, in good faith, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct the defense of such Action and shall, to the extent reasonably requested by Purchaser from time to time, give updates as to the status of such Action. Purchaser shall be entitled to participate in any such defense at its sole cost and expense. Seller may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Purchaser Indemnitee by such third party. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder. (c) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder. (d) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall have the right (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
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Third Party Actions. (a) If Purchaser becomes aware Sellers will indemnify, defend and hold harmless Buyer and its officers, directors, employees, agents, shareholders and Affiliates (collectively, the “Buyer Indemnified Parties”) against any Loss arising from, relating to or constituting any Litigation instituted by any third party arising out of the actions or inactions of any Seller, NCPS or NDVS (or allegations thereof) whether occurring prior to, on or after the Closing Date that are or may be Buyer Losses (any such third party action or proceeding being referred to as a “Third-Party Action”). A Buyer Indemnified Party will give Sellers’ Representative prompt written notice of the commencement of a Third-Party Action. The complaint or other papers pursuant to which the third party commenced such Third-Party Action will be attached to such written notice. The failure to give prompt written notice will not affect any Buyer Indemnified Party’s right to indemnification unless such failure has materially and adversely affected Sellers’ ability to defend successfully such Third-Party Action.
(b) Sellers will contest and defend such Third-Party Action on behalf of any Buyer Indemnified Party that Purchaser believesrequests that they do so. Notice of the intention to so contest and defend will be given by Sellers’ Representative to the requesting Buyer Indemnified Party within 20 business days after the Buyer Indemnified Party’s notice of such Third-Party Action (but, in good faithall events, may result at least five business days prior to the date that a response to such Third-Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Sellers. A Buyer Indemnified Party will be entitled at any time, at its own cost and expense, to participate in a claim such contest and defense and to be represented by attorneys of indemnification for a Purchaser Indemnitee under this Article (a “Purchaser Indemnification Claim”)its own choosing. If the Buyer Indemnified Party elects to participate in such defense, other than a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller the Buyer Indemnified Party will cooperate with Sellers in the conduct of such Action, shall conduct the defense of such Action and shall, defense. A Buyer Indemnified Party will cooperate with Sellers to the extent reasonably requested by Seller from time to timeSellers in the contest and defense of such Third-Party Action, give updates as including providing reasonable access (upon reasonable notice) to the status books, records and employees of the Buyer Indemnified Party if relevant to the defense of such Third-Party Action in accordance with the terms of Section 6.2; provided, that such cooperation will not unduly disrupt the operations of the business of the Buyer Indemnified Party or cause the Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer Indemnified Party to become public.
(c) If any Buyer Indemnified Party does not request that Sellers contest and defend a Third-Party Action. Seller shall , or if after such request Sellers do not contest and defend a Third-Party Action or if any Buyer Indemnified Party reasonably determines that Sellers are not adequately representing or, because of a conflict of interest, may not adequately represent any interests of the Buyer Indemnified Party at any time after requesting Sellers to do so, such Buyer Indemnified Party will be entitled to participate in any such conduct its own defense and to be represented by one attorney of its own choosing, all at its sole Sellers’ cost and expense. Purchaser shall seek Sellers will pay as incurred (no later than 25 days after presentation) the prior written consent reasonable fees and expenses of Seller (which consent may the counsel retained by such Buyer Indemnified Party. Sellers will be withheldentitled at any time, conditioned or delayed at its own cost and expense, to participate in such contest and defense and to be represented by Seller attorneys of its own choosing. If Sellers elect to participate in its sole discretion) such defense, Sellers will cooperate with the Buyer Indemnified Party in connection with Purchaser’s agreement to any settlement or compromise of any such third party Action. Any such written consent by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder. In the event that Purchaser shall fail to obtain such written consent of Seller, Purchaser may agree to any such settlement or compromise, and may make a Purchaser Indemnification Claim therefor, but the resolution conduct of such claim (including whether and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this Article.
(b) If Purchaser becomes aware of defense. Sellers will cooperate with a third party Action that Purchaser believes, in good faith, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct the defense of such Action and shall, Buyer Indemnified Party to the extent reasonably requested by Purchaser from time to timea Buyer Indemnified Party in the contest and defense of such Third-Party Action, give updates as including providing reasonable access (upon reasonable notice) to the status books, records and employees of such Action. Purchaser shall be entitled Sellers if relevant to participate in any such defense at its sole cost and expense. Seller may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Purchaser Indemnitee by such third party. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(c) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shallThird-Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of Sellers or cause Sellers to the extent reasonably requested by Seller from time waive any statutory or common law privileges, breach any confidentiality obligations owed to time, give updates as to the status third parties or otherwise cause any confidential information of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunderbecome public.
(d) If Seller becomes aware Neither a Buyer Indemnified Party nor Sellers may concede, settle or compromise any Third-Party Action without the consent of a third party Action that Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall have the right (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to timeparty, give updates as to the status of such Action. The party which consents will not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunderunreasonably withheld.
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Third Party Actions. (a) If Purchaser becomes aware of In the event any Action is instituted against a third party Action that Purchaser believes, in good faith, may result in a claim of indemnification for a Purchaser Indemnitee under this Article Parent Indemnified Party which involves or appears reasonably likely to involve an Indemnification Claim hereunder (a “Purchaser Indemnification Third Party Claim”), other than a Purchaser Indemnification Claim relating to Parent will, promptly after receipt of notice of any Excluded Liability, Purchaser shall promptly notify Seller of such Action, shall conduct notify the Representative (or, in the event indemnification is being sought hereunder directly from an Effective Time Stockholder, such Effective Time Stockholder) of the commencement thereof. The failure to so notify the Representative (or, in the event indemnification is being sought hereunder directly from an Effective Time Stockholder, such Effective Time Stockholder) of the commencement of any such Action will relieve the Effective Time Stockholders from liability in connection therewith only if and to the extent that such failure materially and adversely affects the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller Parent shall be entitled to participate in any such defense at its sole cost and expense. Purchaser shall seek have the prior written consent of Seller (which consent may be withheldright, conditioned or delayed by Seller in its sole discretion, to control the defense and settlement of such Action; provided, however, that the Representative (or, in the event indemnification is being sought hereunder directly from an Effective Time Stockholder, such Effective Time Stockholder) and its counsel (at the sole expense of the Effective Time Stockholders) may participate in connection (but not control the conduct of) the defense of such Action; provided further that, except with Purchaser’s agreement to any the consent of the Representative (or, in the event indemnification is being sought hereunder directly from an Effective Time Stockholder, such Effective Time Stockholder) (which consent shall not be unreasonably withheld, delayed or conditioned), no settlement or compromise of any such Action with third party Action. Any such written consent by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith claimants shall be indemnifiable hereunderdeterminative of the amount of Damages relating to such matter. In the event that Purchaser shall fail to obtain the Representative (or, in the event indemnification is being sought hereunder directly from an Effective Time Stockholder, such written consent of Seller, Purchaser may agree Effective Time Stockholder) has consented to any such settlement settlement, the Effective Time Stockholders shall have no power or compromise, and may make a Purchaser Indemnification Claim therefor, but the resolution authority to object under any provision of such claim (including whether and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this Article.
(b) If Purchaser becomes aware of a third party Action that Purchaser believes, in good faith, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct the defense of such Action and shall, Article VII to the extent reasonably requested by Purchaser from time to time, give updates as to the status of such Action. Purchaser shall be entitled to participate in any such defense at its sole cost and expense. Seller may agree to any settlement or compromise amount of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Purchaser Indemnitee by such third party. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(c) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(d) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating against the Indemnity Escrow Fund, or against the Effective Time Stockholders directly, as the case may be, with respect to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall have the right (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereundersettlement.
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Sources: Merger Agreement (Fusion-Io, Inc.)
Third Party Actions. (a) If Purchaser becomes aware of a third party Action that Purchaser believes, in good faith, may result in a claim of indemnification for a Purchaser Indemnitee under this Article (a “Purchaser Indemnification Claim”), other than a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser Buyer shall promptly notify Seller Sellers' Representative of the assertion or institution by a third party, including a Governmental Entity, of any claim, action, arbitration, mediation, hearing, investigation, proceeding or suit that may give rise to Buyer Losses for which Buyer could be entitled to indemnification hereunder (a "THIRD PARTY ACTION"). Sellers' Representative shall be entitled to defend such Third Party Action on behalf of Buyer, at the sole cost and expense of Sellers, by giving notice of the intention to so defend to Buyer within 20 business days after Buyer notifies Sellers' Representative of such Third Party Action. Such defense will be conducted by reputable attorneys retained by Sellers' Representative. Buyer will be entitled at any time, shall at its own cost and expense, to participate in such defense and to be represented by attorneys of its own choosing, provided that if Buyer elects to so participate, Buyer will cooperate with Sellers in the conduct the defense of such Action and shalldefense. Whether or not Buyer participates in such defense, Buyer will cooperate with Sellers to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate Sellers in any such defense at its sole cost and expense. Purchaser shall seek the prior written consent of Seller (which consent may be withheld, conditioned or delayed by Seller in its sole discretion) in connection with Purchaser’s agreement to any settlement or compromise of any such third party Action. Any such written consent by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder. In the event that Purchaser shall fail to obtain such written consent of Seller, Purchaser may agree to any such settlement or compromise, and may make a Purchaser Indemnification Claim therefor, but the resolution of such claim (including whether and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this Article.
(b) If Purchaser becomes aware of a third party Action that Purchaser believes, in good faith, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct the defense of such Action and shallThird Party Action, including providing reasonable access (upon reasonable notice) to the extent reasonably requested by Purchaser from time to timebooks, give updates as records and employees of the Buyer if relevant to the status defense of such Third Party Action; provided that such cooperation will not unduly disrupt the operations of the business of Buyer or cause Buyer to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any Confidential Information of Buyer to become public. Purchaser shall If at any time Buyer reasonably determines that Sellers' Representative is not adequately representing or, because of a conflict of interest, may not adequately represent any interests of Buyer, Buyer will be entitled to participate in any such conduct its own defense at and to be represented by attorneys of its sole cost and expenseown choosing. Seller Neither Buyer nor Sellers may agree to any settlement concede, settle or compromise any Third Party Action without the consent of any such third party the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, if (i) the subject matter of a Third Party Action in its sole discretionrelates to the ongoing business of Buyer, so long as such settlement which Third Party Action, if decided against Buyer, would materially adversely affect the ongoing business or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action reputation of Buyer and (Bii) Buyer is unwilling to consent to a settlement of such Third Party Action negotiated by Sellers that provides for a complete release of the Purchaser Indemnitee by such third party. Any such settlement or compromise by Seller Buyer, then Buyer shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(c) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct immediately assume the defense of such Third Party Action and shall, Sellers thereafter will have no responsibility to the extent reasonably requested by Seller indemnify Buyer for any Buyer Losses arising from time to time, give updates as to the status of such Third Party Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(d) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall have the right (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
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Third Party Actions. (a) If Purchaser becomes aware of a third party Action that against a Purchaser believes, in good faith, Indemnitee which may result in a claim of indemnification for a Purchaser Indemnitee under this Article (a “Purchaser Indemnification Claim”), other than a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action, shall conduct the defense of such Action on behalf of the Purchaser Indemnitees and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action and Purchaser shall conduct such defense in a commercially reasonable manner. The failure to so notify Seller of the commencement of any such Action will not relieve the Seller from liability in connection therewith unless and to the extent that such failure materially prejudices the defense of such Action. Seller shall be entitled to participate in (but not control) any such defense at its sole cost and expense. Purchaser shall seek the prior written consent of Seller (which consent may be withheld, conditioned or delayed by Seller in its sole discretion) in connection with Purchaser’s agreement to any settlement or compromise of any such third party Action. Any such written consent by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder. In the event that Purchaser shall fail to obtain such written consent of Seller, Purchaser may agree to any such settlement or compromise, and may make a Purchaser Indemnification Claim therefor, but the resolution of such claim (including whether and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this Article, provided further that Purchaser shall not be entitled to recover the amount of such settlement to the extent that the terms of such settlement are not commercially reasonable.
(b) If Purchaser Seller becomes aware of a third party Action that Purchaser believes, in good faith, against a Seller Indemnitee which may result in a Purchaser claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim relating to any Excluded LiabilityClaim”), Purchaser Seller shall promptly notify Seller Purchaser of such Action. Seller , shall conduct the defense of such Action on behalf of the Seller Indemnitees and shall, to the extent reasonably requested by Purchaser from time to time, give updates as to the status of such Action and Seller shall conduct such defense in a commercially reasonable manner. The failure to so notify Purchaser of the commencement of any such Action will not relieve the Purchaser from liability in connection therewith unless and to the extent that such failure materially prejudices the defense of such Action. Purchaser shall be entitled to participate in (but not control) any such defense at its sole cost and expense. Seller shall seek the prior written consent of Purchaser (which consent may agree be withheld, conditioned or delayed by Purchaser in its sole discretion) in connection with Seller’s agreement to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Purchaser Indemnitee by such third partyAction. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(c) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise written consent by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(d) If Seller becomes aware of a third party Action . In the event that Seller believesshall fail to obtain such written consent of Purchaser, in good faithSeller may agree to any such settlement or compromise, and may result in make a Seller Indemnification Claim therefor, but the resolution of such claim (including whether and to what extent Seller or any other than a Indemnitee is entitled to indemnification under this Agreement for such Seller Indemnification Claim relating Claim) shall remain subject to any Assumed Liabilitythis Article, provided further that Seller shall promptly notify Purchaser not be entitled to recover the amount of such Action. settlement to the extent that the terms of such settlement are not commercially reasonable.
(c) Seller and Purchaser agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such third party Action and shall have provide such reasonable cooperation at the right (exercisable within fifteen (15) Business Days reasonable request of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense defense, negotiation or settlement (the “Defending Party”) shall, to the extent reasonably requested by the other ). Neither party from time to time, give updates as to the status of such Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretionAction, so long as unless such settlement or compromise (A) does not obligate any Indemnitee the other party to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third partyaction. If Purchaser is the Defending Party, any Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser the Defending Party that the Losses incurred in connection therewith shall be indemnifiable hereunder.
Appears in 1 contract
Third Party Actions. (a) If In the event Parent or Purchaser becomes aware of a third third-party Action that claim (a “Third-Party Claim”) which Purchaser believes, in good faith, faith believes may result in a claim of indemnification for a Purchaser Indemnitee under this Article (a “Purchaser Indemnification Claim”), other than a Purchaser an Indemnification Claim relating pursuant to any Excluded Liabilitythis ARTICLE V, Parent or Purchaser shall promptly notify Seller the Equityholders’ Representative in writing of such Actionclaim, describing the Third-Party Claim in reasonable detail (including a reasonable description of the claim, the basis therefore and the amount thereof, if known) and the Equityholders’ Representative shall conduct be entitled on behalf of the Indemnifying Equityholders, at their expense, to participate in, but not to determine or conduct, the defense of such Action and shall, Third-Party Claim. The failure to so notify the Equityholders’ Representative shall only relieve the Indemnifying Equityholders of any liability to the extent the Equityholders’ Representative demonstrates that the defense of such action is materially prejudiced thereby. If there is a Third-Party Claim that, if adversely determined, would give rise to a right of recovery for Losses hereunder, then any expenses, fees and related third-party costs reasonably requested incurred by Seller from time to timethe Indemnitees in defense of such Third-Party Claim, give updates as regardless of the outcome of such claim, shall be deemed Losses hereunder, but subject to the status of such Actionlimitations set forth in Section 5.2. Seller Purchaser shall be entitled have the right in its sole discretion to participate in conduct the defense of, and to settle, any such defense at its sole cost and expense. claim; provided, however, that, Purchaser shall seek the prior written consent of Seller (the Equityholders’ Representative with respect to any settlement, which consent may shall not be unreasonably withheld, conditioned or delayed by Seller in its sole discretion) in connection delayed. The written consent of the Equityholders’ Representative with Purchaser’s agreement respect to any settlement or compromise of any such third party ActionThird-Party Claim shall be deemed to have been given unless the Equityholders’ Representative shall have objected within ten (10) Business Days after a written request for such consent by Purchaser. Any such written consent by Seller the Equityholders’ Representative shall represent the agreement of Seller the Equityholders’ Representative that the Losses incurred in connection therewith shall be indemnifiable hereunderhereunder and, for the avoidance of doubt, represents Loss Amounts, in all instances subject to the limitations set forth in Section 5.2. In the event that the Equityholders’ Representative has consented to any such settlement (or in the event that written consent to settlement has been unreasonably withheld, conditioned or delayed), neither the Equityholders’ Representative nor the Indemnifying Equityholders shall have any power or authority to object under any provision of this ARTICLE V to the amount of any Third-Party Claim by Purchaser shall fail against the Indemnifying Equityholders with respect to obtain such settlement. If such written consent of Selleris not given (unless such consent was unreasonably withheld, conditioned or delayed, in which case the preceding sentence shall apply), Purchaser may agree to any such settlement or compromise, and may make deliver a Purchaser Indemnification Claim Notice therefor, but and the resolution of such claim (including whether and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this ArticleARTICLE V and the Escrow Agreement.
(b) If Purchaser becomes aware of a third party Action that Purchaser believes, in good faith, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct the defense of such Action and shall, to the extent reasonably requested by Purchaser from time to time, give updates as to the status of such Action. Purchaser shall be entitled to participate in any such defense at its sole cost and expense. Seller may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Purchaser Indemnitee by such third party. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(c) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(d) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall have the right (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
Appears in 1 contract
Third Party Actions. In the event any claim is made, suit is brought against Buyer, Seller, or any of their respective directors, officers or affiliates which involves or appears reasonably likely to involve a Buyer Claim for which indemnification may be sought against Seller hereunder, such party will promptly (aand in any event within three (3) If Purchaser becomes aware business days) after receipt of a third party Action that Purchaser believesnotice of any such claim, in good faithsuit or proceeding, notify Buyer or Seller, as the case may result in a claim be, of indemnification for a Purchaser Indemnitee under this Article (a “Purchaser Indemnification Claim”), other than a Purchaser Indemnification Claim relating the commencement thereof. Any failure by Buyer to any Excluded Liability, Purchaser shall promptly so notify Seller of the commencement of any such Actionclaim, suit or proceeding will relieve Seller from liability only to the extent that such failure materially and adversely affects the ability of Seller to defend Seller’s interests in such claim, action or proceeding. Seller (at Seller’s expense) shall conduct have the right and shall be given the opportunity to assume and control the defense of such Action claim, suit or proceeding with counsel of their choice reasonably satisfactory to Buyer so long as (i) Seller notifies Buyer in writing within ten (10) days after Buyer has given notice of the claim that Seller will indemnify Buyer from and shallagainst the entirety of any damages Buyer may suffer resulting from, arising out of, relating to, in the nature of, or caused by such claim, (ii) such claim involves only money damages and does not seek an injunction or other equitable relief, (iii) Seller conducts the defense of such claim actively and diligently, (iv) Seller has the financial resources to conduct an active and diligent defense and to pay, if necessary, the extent maximum amount of the damages sought and furnishes such documents and other information with respect to such financial resources as may be reasonably requested by Buyer, and (v) Seller from time to time, give updates as promptly provides Buyer and its counsel with all documents and other information relating to the status claim and defense thereof as may be reasonably requested by Buyer or its counsel; provided that Buyer and its counsel (at Buyer’s expense) may participate in (but not control the conduct of) all matters pertaining to the defense or settlement of such Actionclaim, suit or proceeding. Whether or not Seller elects to assume such defense, Buyer shall be entitled not, except at its own cost, make any settlement with respect to participate in any such defense at its sole cost and expense. Purchaser shall seek claim, suit or proceeding without the prior written consent of Seller (which Seller. Buyer’s consent may be withheld, conditioned or delayed by Seller in its sole discretion) in connection with Purchaser’s agreement to any the settlement or compromise of any such third party Action. Any such written consent claim, suit or proceeding by Seller shall represent be required and shall not be unreasonably withheld or delayed, but such consent shall not be required if (or to the agreement extent that) such settlement only requires the payment of a monetary amount by Seller that and includes a full release of claims by the Losses incurred in connection therewith shall be indemnifiable hereunderclaimant and Seller against Buyer and does not include a statement as to or admission of fault, culpability or failure to act by or on behalf of Buyer. In the event that Purchaser shall fail any of the conditions set forth in clauses (i) to obtain such written consent (iv) above is or becomes unsatisfied, or if Seller elects not to conduct the defense of Sellerthe claim, Purchaser then (A) the Buyer may agree to any such settlement or compromisedefend against, and consent to the entry of any judgment or enter into any settlement with respect to, such claim in any manner it may make a Purchaser Indemnification Claim therefordeem appropriate (and the Buyer need not consult with, but or obtain any consent from, Seller or any of its affiliates in connection therewith), (B) Seller will reimburse the resolution Buyer promptly and periodically for the costs of defending such claim (including whether reasonable attorneys’ fees and to what extent Purchaser or expenses), and (C) Seller will remain responsible for any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this Article.
(b) If Purchaser becomes aware of a third party Action that Purchaser believesdamages the Buyer may suffer resulting from, arising out of, relating to, in good faiththe nature of, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of or caused by such Action. Seller shall conduct the defense of such Action and shall, claim to the fullest extent reasonably requested by Purchaser from time to time, give updates as to the status of such Action. Purchaser shall be entitled to participate provided in any such defense at its sole cost and expense. Seller may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Purchaser Indemnitee by such third party. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunderthis Section 18.
(c) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(d) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall have the right (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
Appears in 1 contract
Third Party Actions. (a) If Purchaser becomes aware Subject to the limitations provided in this Article VIII, the Seller and Parent will indemnify, defend and hold harmless Buyers, and Parent and their officers, directors, employees, agents, shareholders and Affiliates (collectively, the "Buyers Indemnified Parties") against any Damages arising from, relating to or constituting any litigation instituted by any third party arising out of the actions or inactions of Seller or Parent (or allegations thereof) with respect to the period up to and including the Closing Date that are or may be Buyers Damages (any such third party action or proceeding being referred to as a "Third-Party Action"). A Buyers Indemnified Party will give Seller and Parent prompt written notice of the commencement of a Third-Party Action. The complaint or other papers pursuant to which the third party commenced such Third-Party Action that Purchaser believeswill be attached to such written notice. The failure to give prompt written notice will not affect any Buyers Indemnified Party's right to indemnification unless such failure has materially and adversely affected the Seller's ability to defend successfully such Third-Party Action.
(b) Subject to Section 8.3, Buyers will have the right to contest and defend such Third-Party Action on Buyers' own behalf. Notice of the intention to so contest and defend will be given to Seller and Parent by the Buyers Indemnified Party within twenty (20) Business Days after the Buyers Indemnified Party's receipt of notice of such Third-Party Action (but, in good faithall events, may result at least five (5) Business Days prior to the date that a response to such Third-Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Buyers. Parent or Seller will be entitled at any time, at its own cost and expense, to participate in a claim such contest and defense and to be represented by attorneys of indemnification for a Purchaser Indemnitee under this Article (a “Purchaser Indemnification Claim”)their own choosing. If Parent or Seller elects to participate in such defense, other than a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify the Buyers will cooperate with Parent or Seller in the conduct of such Action, shall conduct the defense of such Action and shall, defense. A Buyers Indemnified Party will cooperate with Parent or Seller to the extent reasonably requested by Parent or Seller from time to timein the contest and defense of such Third-Party Action, give updates as including providing reasonable access (upon reasonable notice) to the status books, records and employees of such Action. Seller shall be entitled the Buyers Indemnified Party if relevant to participate in any such defense at its sole cost and expense. Purchaser shall seek the prior written consent of Seller (which consent may be withheld, conditioned or delayed by Seller in its sole discretion) in connection with Purchaser’s agreement to any settlement or compromise of any such third party Action. Any such written consent by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder. In the event that Purchaser shall fail to obtain such written consent of Seller, Purchaser may agree to any such settlement or compromise, and may make a Purchaser Indemnification Claim therefor, but the resolution of such claim (including whether and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this Article.
(b) If Purchaser becomes aware of a third party Action that Purchaser believes, in good faith, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct the defense of such Action and shall, to the extent reasonably requested by Purchaser from time to time, give updates as to the status of such Third- Party Action. Purchaser shall be entitled to participate in any such defense at its sole cost and expense. Seller may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Purchaser Indemnitee by such third party. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(c) If the Buyers do not contest and defend a Third-Party Action or if Seller becomes aware reasonably determines that the Buyers are not adequately representing or, because of a third party Action that Seller believes, in good faithconflict of interest, may result in a claim not adequately represent any interests of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to at any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Parent or Seller shall will be entitled to participate in any such conduct its own defense and to be represented by an attorney of its own choosing, all at its sole the Parent or Seller's cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(d) If Neither a Buyers Indemnified Party nor Parent or Seller becomes aware may concede, settle or compromise any Third-Party Action without the consent of the other party, which consents will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third-Party Action seeks the issuance of an injunction, the specific election of an obligation or similar remedy or (ii) if the subject matter of a third party Third-Party Action that relates to the ongoing business of any Buyers Indemnified Party, which Third-Party Action, if decided against any Buyers Indemnified Party, would materially adversely affect the ongoing business or reputation of any Buyers Indemnified Party, the Buyers Indemnified Party alone will be entitled to settle such Third-Party Action in the first instance and, if the Buyers Indemnified Party does not settle such Third-Party Action, Parent or Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall will then have the right to contest and defend (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting settle) such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Third-Party Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement
Third Party Actions. (a) If Purchaser becomes aware Subject to the limitations provided in this Article IX, the Selling Companies and the Shareholders will jointly and severally, indemnify, defend and hold harmless each of Parent, and Newco and their officers, directors, employees, agents, shareholders and Affiliates (collectively, the “Parent Indemnified Parties”) against any Damages arising from, relating to or constituting any Litigation instituted by any third party arising out of the actions or inactions of Shareholders or the Selling Companies (or allegations thereof) with respect to the period up to and including the Closing Date that are or may be Parent Damages (any such third party action or proceeding being referred to as a “Third-Party Action”). A Parent Indemnified Party will give Shareholders’ Representative prompt written notice of the commencement of a Third-Party Action. The complaint or other papers pursuant to which the third party commenced such Third-Party Action that Purchaser believeswill be attached to such written notice. The failure to give prompt written notice will not affect any Parent Indemnified Party’s right to indemnification unless such failure has materially and adversely affected Shareholders’ ability to defend successfully such Third-Party Action.
(b) Subject to Section 9.3, Parent will have the right to contest and defend such Third-Party Action on its own behalf. Notice of the intention to so contest and defend will be given to Shareholders’ Representative by the Parent Indemnified Party within twenty (20) business days after the Parent Indemnified Party’s receipt of notice of such Third-Party Action (but, in good faithall events, may result at least five business days prior to the date that a response to such Third-Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Parent. Shareholders’ Representative will be entitled at any time, at its own cost and expense, to participate in a claim such contest and defense and to be represented by attorneys of indemnification for a Purchaser Indemnitee under this Article (a “Purchaser Indemnification Claim”)their own choosing. If Shareholders’ Representative elects to participate in such defense, other than a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller the Parent will cooperate with Shareholders’ Representative in the conduct of such Action, shall conduct the defense of such Action and shall, defense. A Parent Indemnified Party will cooperate with Shareholders’ Representative to the extent reasonably requested by Seller from time to timeShareholders’ Representative in the contest and defense of such Third-Party Action, give updates as including providing reasonable access (upon reasonable notice) to the status books, records and employees of such Action. Seller shall be entitled the Parent Indemnified Party if relevant to participate in any such defense at its sole cost and expense. Purchaser shall seek the prior written consent of Seller (which consent may be withheld, conditioned or delayed by Seller in its sole discretion) in connection with Purchaser’s agreement to any settlement or compromise of any such third party Action. Any such written consent by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder. In the event that Purchaser shall fail to obtain such written consent of Seller, Purchaser may agree to any such settlement or compromise, and may make a Purchaser Indemnification Claim therefor, but the resolution of such claim (including whether and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this Article.
(b) If Purchaser becomes aware of a third party Action that Purchaser believes, in good faith, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct the defense of such Action and shall, to the extent reasonably requested by Purchaser from time to time, give updates as to the status of such Third-Party Action. Purchaser shall be entitled to participate in any such defense at its sole cost and expense. Seller may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Purchaser Indemnitee by such third party. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(c) If Seller becomes aware Parent does not contest and defend a Third-Party Action or if Shareholders’ Representative reasonably determines that Parent is not adequately representing or, because of a third party Action that Seller believes, in good faithconflict of interest, may result in a claim not adequately represent any interests of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to Shareholders’ Representative at any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall Shareholders’ Representative will be entitled to participate in any such conduct its own defense and to be represented by an attorney of its own choosing, all at its sole Shareholders’ cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(d) If Seller becomes aware Neither a Parent Indemnified Party nor Shareholders may concede, settle or compromise any Third-Party Action without the consent of the other party, which consents will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third-Party Action seeks the issuance of an injunction, the specific election of an obligation or similar remedy or (ii) if the subject matter of a third party Third-Party Action that Seller believesrelates to the ongoing business of any Parent Indemnified Party, which Third-Party Action, if decided against any Parent Indemnified Party, would materially adversely affect the ongoing business or reputation of any Parent Indemnified Party, the Parent Indemnified Party alone will be entitled to settle such Third-Party Action in good faiththe first instance and, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liabilityif the Parent Indemnified Party does not settle such Third-Party Action, Seller shall promptly notify Purchaser of such Action. Purchaser shall Shareholders will then have the right to contest and defend (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting settle) such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Third-Party Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Iowa Telecommunications Services Inc)
Third Party Actions. (a) If Purchaser becomes aware In the event any claim is made, suit is brought or tax audit or other proceeding is instituted against Nortek or any Gruppo BEST Company or any of their respective directors, officers or affiliates which involves or appears reasonably likely to involve a third party Action Nortek Claim for which indemnification may be sought against the Sellers hereunder, Nortek will, promptly (and in any event within 15 days) after receipt of notice of any such claim, suit, tax audit or proceeding, notify the Sellers of the commencement thereof. The failure to so notify Sellers of the commencement of any such claim, suit, tax audit or proceeding will relieve Sellers from liability only to the extent that Purchaser believessuch failure materially adversely affects the ability of Sellers to defend its interests in such claim, in good faithsuit, tax audit or proceeding. Whenever permitted under applicable law, Nortek or any Gruppo BEST Company or any of their respective directors, officers or affiliates, as the case may result in a claim of indemnification for a Purchaser Indemnitee under this Article (a “Purchaser Indemnification Claim”), other than a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Actionbe, shall conduct have the right and option to bring Sellers as a formal party into the proceedings, and the Sellers shall have the right and option to join in such proceedings as a formal party in accordance with applicable procedural rules. In all cases in which Sellers do not participate in the proceedings as a formal party, Sellers (at their expense) shall have the right and shall be given the opportunity to participate in the defense of such Action claim, suit, tax audit or proceeding, provided that Nortek and shall, its counsel shall maintain the conduct of all matters pertaining to the extent reasonably requested by Seller from time to time, give updates as to the status defense or settlement of such Actionclaim, suit, tax audit or proceeding. Seller shall be entitled Whether or not Sellers elect to participate in such defense, Nortek shall not, except at its own cost, make any settlement with respect to any such defense at its sole cost and expense. Purchaser shall seek claim, suit, tax audit or proceeding without the prior written consent of Seller (Sellers, which consent may not be unreasonably withheld, conditioned or delayed by Seller in its sole discretion) in connection with Purchaser’s agreement to any settlement or compromise of any such third party Action. Any such written consent by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder. In the event that Purchaser shall fail Nortek determines to obtain settle any such written claim, suit, tax audit or proceeding without the prior consent of SellerSellers (as provided above), Purchaser may agree Sellers shall have no indemnification obligations with respect to such claim, suit, tax audit or proceeding. Nortek's consent to the settlement of any such settlement claim, suit, tax audit or compromise, proceeding by Sellers shall be required and may make a Purchaser Indemnification Claim therefor, but the resolution of such claim (including whether and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this Articlenot be unreasonably withheld.
(b) If Purchaser becomes aware In the event any claim is made, suit is brought or tax audit or other proceeding is instituted against Sellers which involves or appears reasonably likely to involve a Seller Claim for which indemnification may be sought against Nortek hereunder, the Sellers will, promptly (and in any event within 15 days) after receipt of notice of any such claim, suit, tax audit or proceeding, notify Nortek of the commencement thereof. The failure to so notify Nortek of the commencement of any such claim, suit, tax audit or proceeding will relieve Nortek from liability only to the extent that such failure materially adversely affects the ability of Nortek to defend its interest in such claim, suit, tax audit or proceeding. Whenever permitted under applicable law, Nortek or any Gruppo BEST Company or any of their respective directors, officers or affiliates, as the case may be, shall have the right and option to bring Nortek as a third formal party Action that Purchaser believesinto the proceedings, and Nortek shall have the right and option to join in good faithsuch proceedings as a formal party in accordance with applicable procedural rules. In all cases in which Nortek does not participate in the proceedings as a formal party, may result Nortek (at its expense) shall have the right and shall be given the opportunity to participate in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct the defense of such Action claim, suit, tax audit or proceeding, provided that Sellers and shall, their counsel shall maintain the conduct of all matters pertaining to the extent reasonably requested by Purchaser from time to time, give updates as to the status defense or settlement of such Actionclaim, suit, tax audit or proceeding. Purchaser shall be entitled Whether or not Nortek elects to participate in such defense, Sellers shall not, except at its own cost, make any settlement with respect to any such defense at its sole cost and expenseclaim, suit, tax audit or proceeding without the prior consent of Nortek, which may not be unreasonably withheld. Seller may agree In the event that Sellers determines to settle any such claim, suit, tax audit or proceeding without the prior consent of Nortek (as provided above), Nortek shall have no indemnification obligations with respect to such claim, suit, tax audit or proceeding. Seller's consent to the settlement or compromise of any such third party Action in its sole discretionclaim, so long as such settlement suit, tax audit or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Purchaser Indemnitee proceeding by such third party. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith Nortek shall be indemnifiable hereunderrequired and shall not be unreasonably withheld.
(c) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(d) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall have the right (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
Appears in 1 contract
Sources: Acquisition Agreement (Nortek Inc)
Third Party Actions. (a) If Purchaser becomes aware of a In the event any Action is instituted by any third party Action that Purchaser believesagainst a Parent Indemnified Party which involves or appears reasonably likely to involve a Parent Claim for which indemnification may be sought, Parent will, promptly after receipt of notice of any such Action, notify the Stockholder Representative (or, in good faiththe event indemnification is being sought hereunder directly from an Indemnifying Stockholder, may result in a claim such Indemnifying Stockholder) of indemnification for a Purchaser Indemnitee under this Article the commencement thereof (a “Purchaser Indemnification ClaimThird-Party Action”). The failure to so notify the Stockholder Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Stockholder, such Indemnifying Stockholder) of the commencement of any such Third-Party Action will not relieve the Indemnifying Stockholders from liability in connection therewith, except to the extent that such failure materially and adversely affects the ability of the Indemnifying Stockholders to defend their interests in such Third- Party Action. Except with respect to Third-Party Actions related to Taxes (“Tax Actions”), other than a Purchaser Indemnification Claim relating the Stockholder Representative shall have the right in its sole discretion to any Excluded Liability, Purchaser shall promptly notify Seller assume and control the defense or settlement of such Action, shall conduct Third-Party Action if (x) the remedies sought with respect to such Third-Party Action are limited solely to monetary damages and (y) the aggregate amount of monetary damages recoverable in the Third Party Action are reasonably anticipated at the time of the Stockholder Representative’s assumption of the defense of such Third-Party Action to be less than then remaining amounts in the Escrow Fund; provided that, Parent and its counsel (at Parent’s sole expense) may participate in (but not control the conduct of) the defense of such Third-Party Action; provided further that, except with the consent of Parent, (1) the Stockholder Representative shall not settle any such Third-Party Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser shall seek the prior written consent of Seller (which consent may be withheld, conditioned or delayed by Seller in its sole discretion2) in connection with Purchaser’s agreement to any no settlement or compromise of any such third party Action. Any such written consent by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith Third-Party Action shall be indemnifiable hereunderdeterminative of the amount of Damages with respect to a Parent Claim relating to such Third-Party Action. In the event that Purchaser shall fail to obtain such written consent of Seller, Purchaser may agree Parent has consented to any such settlement, Parent will not be entitled to make any claim under SECTION 15 for any additional amount of Damages against the Escrow Fund, or against the Indemnifying Stockholders directly, as the case may be, with respect to any such amounts paid in settlement or compromise, and may make a Purchaser Indemnification Claim therefor, but the resolution of such claim (Third-Party Action. For all Third-Party Actions other than as described in the foregoing sentence, including whether Tax Actions, Parent shall have the right in its sole discretion to assume and to what extent Purchaser control the defense or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this Article.
(b) If Purchaser becomes aware of a third party Action that Purchaser believes, in good faith, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller settlement of such Action. Seller shall ; provided that, the Stockholder Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Stockholder, such Indemnifying Stockholder) and its counsel (at such party’s sole expense) may participate in (but not control the conduct of ) the defense of such Action and shallThird-Party Action; provided further that, to except with the extent reasonably requested by Purchaser reasonable consent of the Stockholder Representative (or, in the event indemnification is being sought hereunder directly from time to timean Indemnifying Stockholder, give updates as to the status of such Action. Purchaser shall be entitled to participate in any such defense at its sole cost and expense. Seller may agree to any Indemnifying Stockholder), no settlement or compromise of any such third party Third-Party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release shall be determinative of the Purchaser Indemnitee by amount of Damages with respect to a Parent Claim relating to such third partymatter. Any such settlement or compromise by Seller shall represent In the agreement of Seller event that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(c) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating Stockholder Representative has consented to any Assumed Liabilitysuch settlement, Seller the Indemnifying Stockholders shall promptly notify Purchaser have no power or authority to object under any provision of such Action. Purchaser shall conduct the defense of such Action and shall, this SECTION 15 to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement or compromise amount of any such third party Action in its sole discretionParent Claim against the Escrow Fund, so long or against the Indemnifying Stockholders directly, as the case may be, with respect to such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereundersettlement.
(d) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall have the right (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
Appears in 1 contract
Sources: Merger Agreement (Emc Corp)
Third Party Actions. Seller will promptly notify Purchaser in writing upon receiving any written notice from Incyte or a Third Party that such Third Party has asserted in writing that the use, sale, offering for sale, importing, manufacturing, or exploitation of any Royalty Product violates or otherwise infringes an issued Patent owned or controlled by such Third Party (a) If each, an “Asserted Patent Notification”, and such Patent, an “Asserted Patent”). [***] of receiving such notice from Seller, Purchaser becomes aware of a third party Action that Purchaser believes, in good faith, may result in a claim of indemnification for a Purchaser Indemnitee under this Article will notify (a “Post-Grant Proceeding Notice”) Seller in writing if Purchaser Indemnification Claimwants to bring a post-grant proceeding at the United States Patent and Trademark Office or other applicable foreign Patent Office challenging the validity of the applicable Asserted Patent (e.g., an Inter Partes Review) (a “Post-Grant Proceeding”). Any failure by Purchaser to provide Seller a Post-Grant Proceeding Notice [***] will be deemed a notification by Purchaser to Seller that it does not want to bring a Post-Grant Proceeding. If Purchaser timely provides Seller a Post-Grant Proceeding Notice stating that it does want to bring a Post-Grant Proceeding, other than Seller will confer with Incyte pursuant to Section 9.6(b) of the License Agreement to determine whether Incyte will bring a Purchaser Indemnification Claim relating Post-Grant Proceeding. In the event that Incyte declines to any Excluded Liabilitybring a Post-Grant Proceeding, Seller will notify Purchaser, and in such event, Purchaser shall promptly notify Seller of such Action, shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense may bring a Post-Grant Proceeding at its sole Purchaser’s own cost and expense. Purchaser shall seek the prior written consent of Seller (which consent may be withheld, conditioned or delayed by Seller in its sole discretion) in connection expense and with Purchaser’s agreement to any settlement or compromise of any own legal counsel. In such third party Action. Any such written consent by event, Seller shall represent use commercially reasonable efforts to cooperate with Purchaser with respect to such Post-Grant Proceeding and Purchaser shall reimburse Seller for the agreement documented out-of-pocket costs and expenses of Seller Seller’s cooperation (including the fees and expenses of Seller’s counsel, if applicable) incurred by Seller, as such costs and expenses are incurred [***] following receipt of Seller’s written request for payment). Seller’s counsel, if any, will be permitted to confer with Purchaser and Purchaser’s counsel regarding such Post-Grant Proceeding, provided that the Losses incurred Purchaser will have final decision-making authority. Nothing in connection therewith this Section 5.16 shall be indemnifiable hereunderlimit any right Purchaser has at Law to challenge any Patent, including any Asserted Patent. In the event that Purchaser shall fail timely provides or is deemed to obtain such written consent of Seller, Purchaser may agree to any such settlement or compromise, and may make provide Seller a Purchaser Indemnification Claim therefor, but the resolution of such claim (including whether and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this Article.
(b) If Purchaser becomes aware of a third party Action Post-Grant Proceeding Notice that Purchaser believes, in good faith, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct the defense of such Action and shall, to the extent reasonably requested by Purchaser from time to time, give updates as to the status of such Action. Purchaser shall be entitled to participate in any such defense at its sole cost and expense. Seller may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) it does not obligate any Purchaser Indemnitee want to take or refrain from taking any action and (Bbring a Post-Grant Proceeding, the provisions of Section 5.6(c) provides for a complete release of the Purchaser Indemnitee by will apply with respect to such third party. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunderAsserted Patent Notification.
(c) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(d) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall have the right (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
Appears in 1 contract
Third Party Actions. (a) If Purchaser becomes aware To Myogen's knowledge, the exercise of a third party Action that Purchaser believes, in good faith, may the rights by NIBRI hereunder will not result in a claim the infringement of indemnification for a Purchaser Indemnitee under this Article (a “Purchaser Indemnification Claim”)valid patents of Third Parties. [/\#/\]CONFIDENTIAL TREATMENT REQUESTED Nevertheless, other than a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall each party will promptly notify Seller of such Action, shall conduct the defense of such Action and shall, other in the event any relevant Third Party patents come to its notice. Neither party gives a warranty to the extent reasonably requested other regarding the infringement of Third Party rights by Seller from time to timethe development, give updates as to manufacture, use or sale of the status Development Candidate or the practice of such Action. Seller shall be entitled to participate in the Myogen Technology or the NIBRI Technology, and gives no indemnity against costs, damages, expenses or other losses arising out of proceedings brought against the other party or any such defense at its sole cost and expense. Purchaser shall seek the prior written consent of Seller (which consent may be withheld, conditioned or delayed other Person by Seller in its sole discretion) in connection with Purchaser’s agreement to any settlement or compromise of any such third party Action. Any such written consent by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunderThird Party. In the event that Purchaser NIBRI is sued for infringement of any rights of any Third Party in the course of its development, manufacture, marketing and sale of Development Candidate or its use of Myogen Technology in connection therewith, Myogen shall fail extend to obtain NIBRI, at no charge, good faith assistance and support in defending such written consent of Seller, Purchaser may agree to any such settlement or compromiseaction, and may make a Purchaser Indemnification Claim thereforparticipate in the conduct of the suit at its own expense, but the resolution of shall otherwise be under no obligation in respect thereof. Legal expenses and fees arising from such claim (including whether and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) a legal action shall remain subject to this Articlebe paid by NIBRI.
(b) If Purchaser becomes aware In the event that the development of Development Candidate or the sale of a third party Action Drug Product in any country necessarily involves working within the scope of a Third Party's patent, which would otherwise be infringed by the practice of a Myogen Patent in connection with such development or sale, then Myogen will use reasonable efforts to obtain required licenses under the Third Party's patents, under terms reasonably acceptable to both Myogen and NIBRI, and the terms of Section 4.5(c) hereof shall apply; provided that Purchaser believesneither Myogen nor NIBRI shall be required to accept any license which carries a financial obligation which is materially in excess of the range of financial obligations customarily associated with comparable non-exclusive licenses. If the terms of a required license under a Third Party patent do not meet the foregoing requirements and Myogen therefore elects not to assume any financial obligation, in good faith, NIBRI may result in a Purchaser Indemnification Claim relating nonetheless elect to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct obtain the defense of such Action and shalllicense, to continue sales of Drug Product in such country and to pay, itself, any amounts due under such license. If the extent reasonably requested by Purchaser from time required license is either unavailable or its terms are unacceptable both to timeMyogen and to NIBRI, give updates as then NIBRI may elect in its sole discretion to discontinue sales of the status of Drug Product in such Action. Purchaser shall be entitled to participate in any such defense country or at its sole cost and expense. Seller may agree expense to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of undertake the Purchaser Indemnitee by such third party. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(c) If Seller becomes aware [/\#/\]CONFIDENTIAL TREATMENT REQUESTED defense of a third party Action that Seller believes, in good faith, may result in patent infringement action or the prosecution of a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, declaratory judgment action with respect to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunderThird Party patents.
(d) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall have the right (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
Appears in 1 contract
Sources: License, Development and Commercialization Agreement (Myogen Inc)
Third Party Actions. (a) If Purchaser becomes aware An Indemnified Party will give Seller prompt written notice of a the commencement of any Litigation instituted by any third party arising out of the actions or inactions of Seller (or allegations thereof) whether occurring prior to, on or after the Closing Date (any such third party action or proceeding being referred to as a "Third-Party Action"). The complaint or other papers pursuant to which the third party commenced such Third-Party Action will be attached to such written notice. The failure to give prompt written notice will not affect any Indemnified Party's right to indemnification unless such failure has materially and adversely affected Sellers' ability to defend successfully such Third-Party Action.
(b) Sellers will contest and defend such Third-Party Action on behalf of any Indemnified Party that Purchaser believesrequests that it does so. Notice of the intention to so contest and defend will be given by Sellers to the requesting Indemnified Party within 20 business days after the Indemnified Party's notice of such Third-Party Action (but, in good faithall events, may result at least 10 business days prior to the date that a response to such Third-Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Sellers. An Indemnified Party will be entitled at any time, at its own cost and expense, to participate in a claim such contest and defense and to be represented by attorneys of indemnification for a Purchaser Indemnitee under this Article (a “Purchaser Indemnification Claim”)its own choosing. If the Indemnified Party elects to participate in such defense, other than a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller the Indemnified Party will cooperate with Sellers in the conduct of such Action, shall conduct the defense of such Action and shall, defense. An Indemnified Party will cooperate with Sellers to the extent reasonably requested by Seller from time to timeSellers in the contest and defense of such Third-Party Action, give updates as including providing reasonable access (upon reasonable notice) to the status books, records and employees of such Action. Seller shall be entitled the Indemnified Party if relevant to participate in any such defense at its sole cost and expense. Purchaser shall seek the prior written consent of Seller (which consent may be withheld, conditioned or delayed by Seller in its sole discretion) in connection with Purchaser’s agreement to any settlement or compromise of any such third party Action. Any such written consent by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder. In the event that Purchaser shall fail to obtain such written consent of Seller, Purchaser may agree to any such settlement or compromise, and may make a Purchaser Indemnification Claim therefor, but the resolution of such claim (including whether and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this Article.
(b) If Purchaser becomes aware of a third party Action that Purchaser believes, in good faith, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct the defense of such Action and shallThird-Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of the Indemnified Party or cause the Indemnified Party to the extent reasonably requested by Purchaser from time waive any statutory or common law privileges, breach any confidentiality obligations owed to time, give updates as to the status third parties or otherwise cause any confidential information of such Action. Purchaser shall be entitled Indemnified Party to participate in any such defense at its sole cost and expense. Seller may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Purchaser Indemnitee by such third party. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunderbecome public.
(c) If Seller becomes aware any Indemnified Party does not request that Sellers contest and defend a Third-Party Action, or if after such request Sellers do not contest and defend a Third-Party Action or if any Indemnified Party reasonably determines that Sellers are not adequately representing or, because of a third party Action that Seller believes, in good faithconflict of interest, may result in a claim not adequately represent any interests of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating the Indemnified Party at any time after requesting Sellers to any Assumed Liabilitydo so, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall Indemnified Party will be entitled to participate in any such conduct its own defense and to be represented by attorneys of its own choosing, all at its sole Sellers' cost and expense. Purchaser Sellers will pay as incurred (no later than 25 days after presentation) the fees and expenses of the counsel retained by such Indemnified Party from the Indemnity Escrow Funds. Neither an Indemnified Party nor Sellers may agree to any settlement concede, settle or compromise any Third-Party Action without the consent of the other party, which consents will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third-Party Action seeks the issuance of an injunction, the specific election of an obligation or similar remedy or (ii) if the subject matter of a Third-Party Action relates to the ongoing business of any Indemnified Party, which Third-Party Action, if decided against any Indemnified Party, would materially adversely affect the ongoing business or reputation of any Indemnified Party, the Indemnified Party alone will be entitled to settle such third party Third-Party Action in its sole discretionthe first instance and, so long as such settlement or compromise (A) if the Indemnified Party does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by settle such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(d) If Seller becomes aware of a third party Action that Seller believesThird-Party Action, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall Sellers will then have the right to contest and defend (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting settle) such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Third-Party Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
Appears in 1 contract
Third Party Actions. (a) If Purchaser becomes aware To Myogen's knowledge, the exercise of a third party Action that Purchaser believes, in good faith, may the rights by NIBRI hereunder will not result in a claim the infringement of indemnification for a Purchaser Indemnitee under this Article (a “Purchaser Indemnification Claim”)valid patents of Third Parties. [/\#/\]CONFIDENTIAL TREATMENT REQUESTED License, other than a Purchaser Indemnification Claim relating to any Excluded LiabilityDevelopment and Commercialization Agreement - Confidential - Page 28 Nevertheless, Purchaser shall each party will promptly notify Seller of such Action, shall conduct the defense of such Action and shall, other in the event any relevant Third Party patents come to its notice. Neither party gives a warranty to the extent reasonably requested other regarding the infringement of Third Party rights by Seller from time to timethe development, give updates as to manufacture, use or sale of the status Development Candidate or the practice of such Action. Seller shall be entitled to participate in the Myogen Technology or the NIBRI Technology, and gives no indemnity against costs, damages, expenses or other losses arising out of proceedings brought against the other party or any such defense at its sole cost and expense. Purchaser shall seek the prior written consent of Seller (which consent may be withheld, conditioned or delayed other Person by Seller in its sole discretion) in connection with Purchaser’s agreement to any settlement or compromise of any such third party Action. Any such written consent by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunderThird Party. In the event that Purchaser NIBRI is sued for infringement of any rights of any Third Party in the course of its development, manufacture, marketing and sale of Development Candidate or its use of Myogen Technology in connection therewith, Myogen shall fail extend to obtain NIBRI, at no charge, good faith assistance and support in defending such written consent of Seller, Purchaser may agree to any such settlement or compromiseaction, and may make a Purchaser Indemnification Claim thereforparticipate in the conduct of the suit at its own expense, but the resolution of shall otherwise be under no obligation in respect thereof. Legal expenses and fees arising from such claim (including whether and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) a legal action shall remain subject to this Articlebe paid by NIBRI.
(b) If Purchaser becomes aware In the event that the development of Development Candidate or the sale of a third party Action Drug Product in any country necessarily involves working within the scope of a Third Party's patent, which would otherwise be infringed by the practice of a Myogen Patent in connection with such development or sale, then Myogen will use reasonable efforts to obtain required licenses under the Third Party's patents, under terms reasonably acceptable to both Myogen and NIBRI, and the terms of Section 4.5(c) hereof shall apply; provided that Purchaser believesneither Myogen nor NIBRI shall be required to accept any license which carries a financial obligation which is materially in excess of the range of financial obligations customarily associated with comparable non-exclusive licenses. If the terms of a required license under a Third Party patent do not meet the foregoing requirements and Myogen therefore elects not to assume any financial obligation, in good faith, NIBRI may result in a Purchaser Indemnification Claim relating nonetheless elect to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct obtain the defense of such Action and shalllicense, to continue sales of Drug Product in such country and to pay, itself, any amounts due under such license. If the extent reasonably requested by Purchaser from time required license is either unavailable or its terms are unacceptable both to timeMyogen and to NIBRI, give updates as then NIBRI may elect in its sole discretion to discontinue sales of the status of Drug Product in such Action. Purchaser shall be entitled to participate in any such defense country or at its sole cost and expense. Seller may agree expense to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of undertake the Purchaser Indemnitee by such third party. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(c) If Seller becomes aware [/\#/\]CONFIDENTIAL TREATMENT REQUESTED defense of a third party Action that Seller believes, in good faith, may result in patent infringement action or the prosecution of a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, declaratory judgment action with respect to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunderThird Party patents.
(d) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall have the right (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
Appears in 1 contract
Sources: License, Development and Commercialization Agreement (Myogen Inc)
Third Party Actions. (a) If Purchaser becomes aware Sellers will jointly and severally, indemnify, defend and hold harmless each of Buyer, the Companies and the Subsidiaries and their officers, directors, employees, agents, shareholders and Affiliates (collectively, the “Buyer Indemnified Parties”) against any Loss arising from, relating to or constituting any Litigation instituted by any third party arising out of the actions or inactions of Sellers or the Companies (or allegations thereof) with respect to the period up to and including the Closing Date that are or may be Buyer Losses (any such third party action or proceeding being referred to as a “Third-Party Action”). A Buyer Indemnified Party will give Sellers’ Representative prompt written notice of the commencement of a Third-Party Action. The complaint or other papers pursuant to which the third party commenced such Third-Party Action that Purchaser believeswill be attached to such written notice. The failure to give prompt written notice will not affect any Buyer Indemnified Party’s right to indemnification unless such failure has materially and adversely affected Sellers’ ability to defend successfully such Third-Party Action.
(b) Subject to Section 10.3, Buyer will have the right to contest and defend such Third-Party Action on its own behalf. Notice of the intention to so contest and defend will be given to Sellers’ Representative by the Buyer Indemnified Party within 20 business days after the Buyer Indemnified Party’s receipt of notice of such Third-Party Action (but, in good faithall events, may result at least five business days prior to the date that a response to such Third-Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Buyer. Sellers will be entitled at any time, at their own cost and expense, to participate in a claim such contest and defense and to be represented by attorneys of indemnification for a Purchaser Indemnitee under this Article (a “Purchaser Indemnification Claim”)their own choosing. If the Sellers elect to participate in such defense, other than a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller the Buyer will cooperate with Sellers in the conduct of such Action, shall conduct the defense of such Action and shall, defense. A Buyer Indemnified Party will cooperate with Sellers to the extent reasonably requested by Seller from time to timeSellers in the contest and defense of such Third-Party Action, give updates as including providing reasonable access (upon reasonable notice) to the status books, records and employees of such Action. Seller shall be entitled the Buyer Indemnified Party if relevant to participate in any such defense at its sole cost and expense. Purchaser shall seek the prior written consent of Seller (which consent may be withheld, conditioned or delayed by Seller in its sole discretion) in connection with Purchaser’s agreement to any settlement or compromise of any such third party Action. Any such written consent by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder. In the event that Purchaser shall fail to obtain such written consent of Seller, Purchaser may agree to any such settlement or compromise, and may make a Purchaser Indemnification Claim therefor, but the resolution of such claim (including whether and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this Article.
(b) If Purchaser becomes aware of a third party Action that Purchaser believes, in good faith, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct the defense of such Action and shall, to the extent reasonably requested by Purchaser from time to time, give updates as to the status of such Third-Party Action. Purchaser shall be entitled to participate in any such defense at its sole cost and expense. Seller may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Purchaser Indemnitee by such third party. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(c) If Seller becomes aware Buyer does not contest and defend a Third-Party Action or if Sellers’ Representative reasonably determines that Buyer is not adequately representing or, because of a third party Action that Seller believes, in good faithconflict of interest, may result in a claim not adequately represent any interests of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to the Sellers at any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall Sellers’ Representative will be entitled to participate in any such conduct its own defense and to be represented by an attorney of its own choosing, all at its sole Sellers’ cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(d) If Seller becomes aware Neither a Buyer Indemnified Party nor Sellers may concede, settle or compromise any Third-Party Action without the consent of the other party, which consents will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third-Party Action seeks the issuance of an injunction, the specific election of an obligation or similar remedy or (ii) if the subject matter of a third party Third-Party Action that Seller believesrelates to the ongoing business of any Buyer Indemnified Party, which Third-Party Action, if decided against any Buyer Indemnified Party, would materially adversely affect the ongoing business or reputation of any Buyer Indemnified Party, the Buyer Indemnified Party alone will be entitled to settle such Third-Party Action in good faiththe first instance and, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liabilityif the Buyer Indemnified Party does not settle such Third-Party Action, Seller shall promptly notify Purchaser of such Action. Purchaser shall Sellers will then have the right to contest and defend (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting settle) such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Third-Party Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Iowa Telecommunications Services Inc)
Third Party Actions. In the event that a third party (a) If Purchaser becomes aware of a third party Action that Purchaser believescommences legal action against EXACT, its AFFILIATES or its SUBLICENSEE(S) relating to the PATENT RIGHTS, or (b) seeks to enjoin EXACT, its AFFILIATES or its SUBLICENSEES from making, selling, performing, using, or otherwise commercializing in good faithany way, may result in a claim of indemnification for a Purchaser Indemnitee under this Article an INFRINGING FECAL BASED TEST or OTHER ITEM, (a a. and b. above shall be referred to herein as the “Purchaser Indemnification ClaimLegal Action”), other than COMPANY shall be obligated to vigorously defend the Legal Action until the sooner of (i) COMPANY incurs [********] in legal fees and/or expenses (the “Defense Costs”) (including, but not limited to, settlement amounts, judgments, damage awards, etc.), (ii) notwithstanding its vigorous and reasonable defense (i.e. “reasonable” given the time available to mount such a Purchaser Indemnification Claim relating defense prior to injunction issuance), COMPANY and its AFFILIATED COMPANIES and SUBLICENSEES are permanently enjoined (and all rights of appeal have expired or been exhausted) in the United States from selling all such PRODUCTS and performing all such SERVICES that COMPANY, any Excluded LiabilityAFFILIATED COMPANY or SUBLICENSEE were selling or providing prior to issuance of the injunction, Purchaser shall promptly notify Seller or (iii) JHU provides written notice to COMPANY, authorizing the COMPANY to cease defending the Legal Action (although, following receipt of such Actionnotice from JHU, shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller COMPANY shall be entitled (though not obligated) to participate in any such defense continue defending the Legal Action at its COMPANY’S sole cost and expense). Purchaser Notwithstanding the foregoing, all amounts incurred by COMPANY relating to the Defense Costs, up to but not exceeding the [********] amount, will be applied against the Cumulative Cap as described in Paragraph 3.4 above. Any recovery of damages by COMPANY for each such suit shall seek the prior written consent of Seller (which consent may be withheld, conditioned or delayed by Seller applied first in its sole discretion) in connection with Purchaser’s agreement to any settlement or compromise satisfaction of any unreimbursed Defense Costs of COMPANY relating to such third party Action. Any such written consent by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith Legal Action (and which shall be indemnifiable hereunder. In applied to reinstate the event that Purchaser shall fail Cumulative Cap by an equivalent amount) and next toward reimbursement of JHU for any ANNUAL FEE AMOUNTS to obtain such written consent of Seller, Purchaser may agree to any such settlement or compromise, and may make a Purchaser Indemnification Claim therefor, but the resolution of such claim (including whether and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this Article.
(b) If Purchaser becomes aware of a third party Action that Purchaser believes, in good faith, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct the defense of such Action and shall, to the extent reasonably requested by Purchaser from time to time, give updates as to the status of such Action. Purchaser shall which JHU would be entitled to participate in any such defense at its sole cost and expense. Seller may agree to any settlement or compromise under Paragraph 3.4 of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Purchaser Indemnitee by such third party. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunderthis Agreement.
(c) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(d) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall have the right (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
Appears in 1 contract
Third Party Actions. (a) If Purchaser APC becomes aware of a third third-party Action that Purchaser APC believes, in good faith, may result in a claim of indemnification for a Purchaser Indemnitee under this Article (a “Purchaser an Indemnification Claim”), other than a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser APC shall promptly notify Seller the Stockholders’ Representative of such Action, shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller the Stockholders’ Representative from time to time, shall give updates as to the status of such Action. Seller If there is a third-party Action that, if adversely determined, would give rise to a right of recovery for Losses hereunder, then any expenses, fees and related costs incurred by the Indemnitees in defense of such third-party Action, regardless of the outcome of such claim, shall be deemed indemnifiable hereunder. The Stockholders’ Representative, as representative for the Stockholders, shall be entitled to participate in any such defense. The reasonable costs of any such participation by the Stockholders’ Representative in the defense at its sole cost and expenseof a third-party Action shall be paid by the Indemnifying Stockholders. Purchaser APC shall seek the prior written consent of Seller the Stockholders’ Representative (which consent may not be unreasonably withheld, conditioned or delayed by Seller in its sole discretion) in connection with PurchaserAPC’s agreement to any settlement or compromise of any such third third-party Action. In the event that the Stockholders’ Representative does not provide written consent to APC’s agreement to any settlement or compromise of any third-party Action within five (5) Business Days (the “Response Period”) of Stockholders’ Representative’s receipt of such request for written consent, Stockholders’ Representative shall be deemed to have consented to the settlement or compromise. Any such written consent, or failure to provide such consent within such Response Period, by Seller the Stockholders’ Representative shall represent the agreement of Seller the Stockholders’ Representative that the Losses incurred in connection therewith shall be indemnifiable hereunder, and as such, neither the Stockholders’ Representative (nor the Indemnifying Stockholders) shall have any power or authority to object under any provision of this Article 6 with respect to APC’s entitlement to be paid for such Losses from the Stockholders’ Representative. In the event that Purchaser shall fail the Stockholders’ Representative notifies APC in writing within the Response Period that it does not agree to obtain the agreement to such written consent of Sellersettlement or compromise, Purchaser APC may agree to any such settlement or compromise, and may make a Purchaser an Indemnification Claim therefortherefor under Section 6.6 (Indemnification Procedures), but the resolution of such claim (including whether and to what extent Purchaser APC or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this ArticleArticle 6.
(b) If Purchaser becomes aware of a third party Action that Purchaser believes, in good faith, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct the defense of such Action and shall, to the extent reasonably requested by Purchaser from time to time, give updates as to the status of such Action. Purchaser shall be entitled to participate in any such defense at its sole cost and expense. Seller may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Purchaser Indemnitee by such third party. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(c) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(d) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall have the right (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
Appears in 1 contract
Third Party Actions. (a) If Purchaser becomes aware Either Seller or Buyer shall provide to the other, as applicable, prompt written notice of a the commencement of any Litigation initiated by any third party Action that Purchaser believes, in good faith, for which indemnification may result in a claim of indemnification for a Purchaser Indemnitee under this Article be owed (a “Purchaser Indemnification ClaimThird-Party Action”). At Seller’s option, other than Seller may, with the consent of Buyer (which consent shall not be unreasonably withheld), contest and defend any indemnified Loss from any Third Party Action for which Seller has an obligation to provide indemnity or in which Seller is a Purchaser Indemnification Claim relating party. Notice of the intention to any Excluded Liability, Purchaser shall promptly notify so contest and defend will be given by Seller to Buyer within 20 business days after giving of notice of such Third-Party Action (but, in all events, at least ten (10) business days prior to the date that a response to such Third-Party Action is due to be filed). If Seller assumes such contest and defense, it will be conducted by reputable attorneys retained by Seller, which attorneys must be reasonably acceptable to Buyer. Buyer will be entitled at any time, at its own cost and expense, to participate in such contest and defense and to be represented by attorneys of its own choosing. The parties will cooperate with one another in the conduct of defense of any Third-Party Action, shall conduct including providing reasonable access (upon reasonable notice) to the books, records and employees of the Company if relevant to the defense of such Action and shallThird-Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of Buyer or the Company or cause either party to the extent reasonably requested by Seller from time waive any statutory or common law privileges, breach any confidentiality obligations owed to time, give updates as to the status third parties or otherwise cause any confidential information of such Action. Seller shall be entitled party to participate in any such defense at its sole cost and expense. Purchaser shall seek the prior written consent of Seller (which consent may be withheld, conditioned or delayed by Seller in its sole discretion) in connection with Purchaser’s agreement to any settlement or compromise of any such third party Action. Any such written consent by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder. In the event that Purchaser shall fail to obtain such written consent of Seller, Purchaser may agree to any such settlement or compromise, and may make a Purchaser Indemnification Claim therefor, but the resolution of such claim (including whether and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain subject to this Articlebecome public.
(b) If Purchaser becomes aware of Seller does not contest and defend a third party Action that Purchaser believesThird-Party Action, in good faith, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct the defense of such Action and shall, to the extent reasonably requested by Purchaser from time to time, give updates as to the status of such Action. Purchaser shall Buyer will be entitled to participate in any such conduct its own defense and to be represented by attorneys of its own choosing, all at its sole Seller’s cost and expense. Seller may agree to any settlement or compromise of any such third party Action in its sole discretion, so long will pay as such settlement or compromise incurred (Ano later than 25 days after presentation) does not obligate any Purchaser Indemnitee to take or refrain from taking any action the fees and (B) provides for a complete release expenses of the Purchaser Indemnitee counsel retained by such third party. Any such settlement or compromise by Seller shall represent the agreement Buyer Indemnified Party with claims for reimbursement subject to other provisions of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunderthis Section.
(c) If Neither Buyer nor Seller becomes aware of a third party Action that Seller believesmay concede, in good faith, may result in a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement settle or compromise of any such third party Third-Party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release without the consent of the Seller Indemnitee by such third other party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall , which consents will not be indemnifiable hereunderunreasonably withheld.
(d) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall have the right (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
Appears in 1 contract
Third Party Actions. (ai) If Purchaser becomes aware Parent Indemnitee receives notice or otherwise obtains knowledge of any matter or any threatened matter that may give rise to an indemnification claim against the Stockholders with respect to a claim asserted by a third party Action that Purchaser believesparty, in good faith, may result in a claim of indemnification for a Purchaser then the Parent Indemnitee under this Article (a “Purchaser Indemnification Claim”), other than a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action, shall conduct deliver to the defense of such Action and shallStockholders’ Representative a written notice describing, to the extent reasonably requested by Seller from time to timepracticable, give updates as to the status of such Action. Seller matter in reasonable detail, and shall be entitled to participate in any also provide such defense at its sole cost information and expense. Purchaser shall seek the prior written consent of Seller (which consent may be withheld, conditioned or delayed by Seller in its sole discretion) in connection documentation with Purchaser’s agreement to any settlement or compromise of any such third party Action. Any such written consent by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder. In the event that Purchaser shall fail to obtain such written consent of Seller, Purchaser may agree respect to any such settlement or compromise, and may claim that is reasonably available. The failure to make a Purchaser Indemnification Claim therefor, but the resolution timely delivery of such claim (including whether and written notice by the Parent Indemnitee to what extent Purchaser or the Stockholders’ Representative shall not relieve the Stockholders from any other Indemnitee is entitled to indemnification liability under this Agreement for Article VIII with respect to such Purchaser Indemnification Claim) shall remain subject to this Article.
(b) If Purchaser becomes aware of a third party Action that Purchaser believesmatter, in good faith, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct the defense of such Action and shall, except to the extent reasonably requested the Stockholders’ Representative is actually materially prejudiced by Purchaser from time failure to time, give updates as to the status of such Action. Purchaser shall be entitled to participate in any such defense at its sole cost and expense. Seller may agree to any settlement notice or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Purchaser Indemnitee by such third party. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(c) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Actionapplicable survival period delineated in Section 8.1 has expired. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(d) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser The Stockholders’ Representative shall have the right (right, at its option, exercisable within fifteen (15) Business Days after the date of receipt by Purchaser of Seller’s notice), but not the obligation such notice to conduct assume the defense thereof. The party conducting such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Action. The party not conducting such defense shall be entitled to participate in any such defense matter with its own counsel and at its sole cost and expense. The Defending Party may agree ; provided, (x) such counsel shall be reasonably satisfactory to the Parent Indemnitee, and (y) the Stockholders’ Representative shall not have any settlement or compromise right to assume the defense of any such matter if (1) the third party Action claimant is a then-current material customer of the Parent Indemnitee or its Affiliates, (2) the Parent Indemnitee reasonably believes an adverse determination with respect to such matter would be materially detrimental to or materially injure the reputation and future business prospects of the Parent Indemnitee or its Affiliates, (3) such matter is criminal in its sole discretionnature, so long as (4) such settlement matter seeks injunctive relief or compromise other non-monetary equitable remedies against the Parent Indemnitee, or (5) such matter seeks damages in excess of the amount for which the Parent Indemnitee could obtain indemnification from the Stockholders pursuant to this Article VIII.
(ii) If the Stockholders’ Representative elects to assume the defense of and indemnification for any such matter in accordance with this Section 8.4(b), then:
(A) does notwithstanding anything to the contrary contained in this Agreement, the Stockholders’ Representative, on behalf of the Stockholders, shall not obligate be required to pay or otherwise indemnify the Parent Indemnitee against any attorneys’ fees or other expenses incurred on behalf of the Parent Indemnitee in connection with such matter following the Stockholders’ Representative election to take assume the defense of such matter, unless (x) the Stockholders’ Representative fails to defend diligently the action or refrain proceeding within ten (10) days after receiving notice of such failure from taking any action the Parent Indemnitee, (y) the Parent Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to the Parent Indemnitee that are not available to the Stockholders’ Representative, or (z) the Parent Indemnitee reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the Parent Indemnitee and the Stockholders’ Representative may have different, conflicting, or adverse legal positions or interests;
(B) provides for a complete release except in connection with any Litigation where any Parent Indemnitee is adverse to the Stockholders, the Parent Indemnitee shall, at its own expense, make available to the Stockholders’ Representative all books, records and other documents and materials that are under the direct or indirect control of the Parent Indemnitee by or any its agents and that the Stockholders’ Representative considers necessary or desirable for the defense of such third party. If Purchaser is matter, and reasonably cooperate with, and make its employees and advisors available or otherwise render reasonable assistance to, the Defending Party, any such settlement Stockholder’s Representative and its agents; and
(C) the Stockholder’s Representative shall not settle or compromise by Purchaser any pending or threatened Litigation in respect of which indemnification may be sought hereunder (whether or not the Parent Indemnitee is an actual or potential party to such Litigation) or consent to the entry of any judgment, in each case without the written consent of the Parent Indemnitee, which shall represent not be unreasonably withheld or delayed.
(iii) If the agreement Stockholders’ Representative (x) elects not to assume the defense of Purchaser that and indemnification for such matter (or fails to notify the Losses incurred Parent Indemnitee of such election within the period set forth in connection therewith this Section 8.4(b)), (y) elects to assume the defense of and indemnification for such matter but then fails to diligently conduct such defense, or (z) is not entitled to assume the defense of such matter pursuant to Section 8.4(b)(i), then the Parent Indemnitee shall proceed diligently to defend such matter with the assistance of counsel reasonably satisfactory to the Stockholder’s Representative; provided, the Parent Indemnitee shall not settle, adjust or compromise such matter, or admit any liability with respect to such matter, without the prior written consent of the Stockholder’s Representative, such consent not to be indemnifiable hereunderunreasonably withheld or delayed.
(iv) The procedures in this Section 8.4(b) shall not apply to direct claims of a Parent Indemnitee which are addressed in Section 8.4(a) (Direct Claims).
Appears in 1 contract
Sources: Agreement and Plan of Merger (ZeroFox Holdings, Inc.)
Third Party Actions. If any claim is made, suit is brought or tax audit or other proceeding instituted against an indemnified party that involves or appears reasonably likely to involve either Pittencrieff Losses or Seller Losses, as the case may be, the indemnified party will, promptly after receipt of notice of any such claim, suit or proceeding for which indemnification may be sought, notify the indemnifying party of the commencement thereof. The indemnified party (a) If Purchaser becomes aware of at its expense, unless a third party Action conflict exists such that Purchaser believesthe parties cannot be represented by the same counsel, in good faith, may result which event the indemnifying party shall pay for one counsel for the indemnified party) shall have the right and shall be given the opportunity to associate with the indemnifying party in a claim of indemnification for a Purchaser Indemnitee under this Article (a “Purchaser Indemnification Claim”), other than a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action, shall conduct the defense of such Action and shallclaim, suit or proceeding, provided that counsel for the indemnifying party shall act as lead counsel in all matters pertaining to the extent reasonably requested by Seller from time defense or settlement of such claim, suit or proceeding, and the indemnifying party shall have control of such claim, suit or proceeding, including the right to timesettle such claim, give updates as suit or proceeding without the consent of the indemnified party. An indemnified party shall not, except at its own cost, make any settlement with respect to any such claim, suit or proceeding without the prior consent of the indemnifying party, which consent shall not be unreasonably withheld. If an indemnified party determines to settle any such claim, suit or proceeding without the prior consent of the indemnifying party, the indemnifying party shall have no further indemnification obligations under this Section 13 with respect to such claim, suit or proceeding. Notwithstanding anything in this Section 13.7 to the status contrary, if the indemnifying party, by the fifteenth day after its receipt of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser shall seek the prior written consent of Seller (which consent may be withheld, conditioned or delayed by Seller in its sole discretion) in connection with Purchaser’s agreement to any settlement or compromise notice of any such third claim, suit or proceeding (or, if earlier, by the fifth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not notify the indemnified party Action. Any that it has undertaken to defend against such written consent by Seller shall represent claim, the agreement of Seller that party to be indemnified will have the Losses incurred in connection therewith shall be indemnifiable hereunder. In the event that Purchaser shall fail to obtain such written consent of Seller, Purchaser may agree to any such settlement or compromise, and may make a Purchaser Indemnification Claim thereforright, but not the resolution obligation, to undertake the defense, compromise or settlement of such claim (including whether on behalf of and to what extent Purchaser or any other Indemnitee is entitled to indemnification under this Agreement for such Purchaser Indemnification Claim) shall remain the account and risk of the indemnifying party and at the indemnifying party's expense, subject to this Article.
(b) If Purchaser becomes aware the right of a third the indemnifying party Action that Purchaser believes, in good faith, may result in a Purchaser Indemnification Claim relating to any Excluded Liability, Purchaser shall promptly notify Seller of such Action. Seller shall conduct assume the defense of such Action and shallclaims at any time prior to settlement, to compromise or final determination thereof. In such event, the extent reasonably requested by Purchaser from time to time, give updates as to indemnified party will notify the status of such Action. Purchaser shall be entitled to participate in any such defense at its sole cost and expense. Seller may agree to any settlement or compromise indemnifying party of any such third party Action in its sole discretion, so long as proposed settlement no later than three days before such settlement or compromise (A) does not obligate any Purchaser Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Purchaser Indemnitee by such third partyis effected. Any such settlement or compromise by Seller shall represent the agreement of Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder14.
(c) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a claim of indemnification for a Seller Indemnitee under this Article (a “Seller Indemnification Claim”) relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall conduct the defense of such Action and shall, to the extent reasonably requested by Seller from time to time, give updates as to the status of such Action. Seller shall be entitled to participate in any such defense at its sole cost and expense. Purchaser may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Seller Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Seller Indemnitee by such third party. Any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
(d) If Seller becomes aware of a third party Action that Seller believes, in good faith, may result in a Seller Indemnification Claim other than a Seller Indemnification Claim relating to any Assumed Liability, Seller shall promptly notify Purchaser of such Action. Purchaser shall have the right (exercisable within fifteen (15) Business Days of receipt by Purchaser of Seller’s notice), but not the obligation to conduct the defense thereof. The party conducting such defense (the “Defending Party”) shall, to the extent reasonably requested by the other party from time to time, give updates as to the status of such Action. The party not conducting such defense shall be entitled to participate in any such defense at its sole cost and expense. The Defending Party may agree to any settlement or compromise of any such third party Action in its sole discretion, so long as such settlement or compromise (A) does not obligate any Indemnitee to take or refrain from taking any action and (B) provides for a complete release of the Indemnitee by such third party. If Purchaser is the Defending Party, any such settlement or compromise by Purchaser shall represent the agreement of Purchaser that the Losses incurred in connection therewith shall be indemnifiable hereunder.
Appears in 1 contract
Sources: Contribution Agreement (FMR Corp)