Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions: (1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”). (2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired. (3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.
Appears in 4 contracts
Sources: Transition Services Agreement, Transition Services Agreement (Halyard Health, Inc.), Transition Services Agreement (Halyard Health, Inc.)
Third Party Claim. The Company Group member’s indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider 5.2 and the Provider’s indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver5.3, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A1) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) 30 calendar days following after receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five Notice (5) days before that datethe “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party will assume control disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the defense and settlement Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of such claim (a “Notice of Assumption”)the Indemnifying Party.
(2b) If the Indemnifying Party delivers a Notice of Assumption notifies the Indemnified Party within the required notice periodElection Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 5.4.1(b) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 5.4.1(b). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 5.4.1(b). Notwithstanding anything in this Section 5.4.1(b) to the contrary, the Indemnifying Party shall assume control (subject to may not, without the express written consent of the Indemnified Party’s right , agree to participate at its own expense) over the defense and any compromise or settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval which does not include an unconditional release of the Indemnified Party before entering into any settlement of such claim asserting any liability against from all Damages.
(c) If the Indemnifying Party fails to notify the Indemnified PartyParty within the Election Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 5.4.1(b), imposing any obligations or restrictions on then this Section 5.4.1(c) shall apply (but not otherwise) and the Indemnified PartyParty shall have the right to defend, ceasing at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to defend against such claim indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or otherwise adversely impacting settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any legal fees such compromise or expenses incurred settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party following pursuant to this Section 5.4.1(c).
(d) Notwithstanding anything in this Section 5.4.1 to the delivery of a Notice of Assumption; providedcontrary, however, that to the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if extent (x1) the Indemnifying Party has delivered a timely Notice of Assumption notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article 5 and (B) such amount was agreed to without the written consent dispute is resolved in favor of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice shall not be required to bear the costs and expenses of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating Party’s defense pursuant to any claim within Section 5.4.1(b) or the required notice periodIndemnified Party’s defense pursuant to Section 5.4.1(c), and the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreementin full for all of those costs and expenses.
Appears in 4 contracts
Sources: Master Services Agreement (Transocean Partners LLC), Master Services Agreement (Transocean Partners LLC), Master Services Agreement (Transocean Partners LLC)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(i) for each Party in its capacity as a Service Provider and Without limiting the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) ’s obligations under Section 7.2(a), if the Claim for which indemnification is being sought arises from any Action brought by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice Person (a “Claim NoticeThird-Party Claim”) describingagainst the Indemnified Party, then the Claim Notice therefor shall include copies of all material written evidence thereof and all filings that have been made by such third Person in reasonable detailconnection therewith and served on the Indemnified Party, and shall indicate the nature estimated amount, if reasonably practicable, of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from Damages that have been or may be incurred by the Indemnified Party relating Party.
(ii) Subject to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that dateconditions of this Section 7.2(b)(ii), the Indemnifying Party shall notify have the right to control the conduct of the defense of any Third Party Claim, at the Indemnifying Party’s expense and using counsel selected by the Indemnifying Party to which the Indemnified Party has no reasonable objection. Notwithstanding the foregoing, the Indemnifying Party shall not be permitted to control the conduct of the defense of any Third Party Claim unless (A) within 30 days (or such longer period of time as the Indemnified Party and the Indemnifying Party may mutually agree in writing) after the Indemnified Party’s delivery of a written notice of a Third-Party Claim pursuant to Section 7.2(b)(i), the Indemnifying Party gives written notice to the Indemnified Party that the Indemnifying Party will it intends to assume control of and conduct the defense and settlement of such claim Third-Party Claim; (a “Notice B) the Indemnifying Party acknowledges in writing to the Indemnified Party (to the extent capable of Assumption”)being acknowledged based on the information provided) that there exists an indemnification obligation by the Indemnifying Party relating to such Third-Party Claim; (C) the amount reasonably claimed in such Third-Party Claim, together with any amounts that are reasonably necessary to satisfy any unsatisfied Claim made by the Indemnified Party is less than or equal to the then applicable limitations of liability for indemnification with respect to such Third-Party Claim as provided herein; (D) such Third-Party Claim does not involve criminal or regulatory enforcement action or seek an injunction or other equitable relief against the Indemnified Party or any of its affiliates; (E) no legal conflict exists between the Indemnified Party and the Indemnifying Party in connection with the defense of such Third-Party Claim; (F) the conduct of the defense of, settlement of or an adverse resolution with respect to such Third-Party Claim would not reasonably be expected to be adverse in any material respect to the Indemnified Party’s or any of its affiliates’ reputation, business or operations; and (G) the Indemnified Party actively and diligently conducts the defense of such Third Party Claim. The Indemnifying Party will lose any previously acquired right to control the defense of any Third-Party Claim if for any reason any of the foregoing conditions set forth in clause (B) through clause (G) of the preceding sentence are no longer satisfied, and the Indemnified Party will have the right to take over the control of such defense.
(2iii) If the Indemnifying Party delivers is exercising a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over control the conduct of the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Third-Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice periodClaim, the Indemnified Party shall have the right to defend participate in the claim in defense of such manner Third-Party Claim at its own expense and with its own counsel and the Indemnifying Party shall keep the Indemnified Party reasonably informed as it may deem appropriateto the progress of such Third-Party Claim. The Indemnifying Party shall promptly reimburse may not consent to the entry of any judgment or enter into any compromise or settlement with respect to any Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed) unless the Indemnifying Party is exercising a right to control the conduct of the defense of a Third-Party Claim and the terms, conditions and existence of such judgment, compromise or settlement are confidential and such judgment, compromise or settlement (A) provides for the payment by the Indemnifying Party of money as sole relief for the claimant; (B) results in a dismissal with prejudice of such Third-Party Claim, including a full and general release of the Indemnified Party and its Affiliates from all reasonable costs liabilities arising or relating to, or in connection with, the Third-Party Claim; and expenses incurred by (C) includes an affirmative statement that there is no finding or admission of any violation of any law or the rights of any person or entity, and has no adverse effect on any other claims that may be made against the Indemnified Party. The Indemnified Parties will have no liability with respect to any compromise or settlement of, including attorneys’ feesor the entry of any judgment arising from, in connection therewith any Third-Party Claim effected without the Indemnified Party’s consent.
(iv) If the Indemnifying Party elects not to control or is not entitled to control the extent it is conduct of the defense of a claim for Third-Party Claim, then the Indemnified Party shall have the right to control the conduct of the defense of the Third Party Claim, at the Indemnifying Party’s expense and using counsel selected by the Indemnified Party to which the Indemnifying Party has no reasonable objection. In such event, the Indemnifying Party shall have the right to participate in the defense of such Third-Party Claim at its own expense and with its own counsel, and the Indemnified Party shall keep the Indemnifying Party reasonably informed as to the progress of such Third-Party Claim. If the Indemnified Party is obligated exercising a right to indemnify under this Agreementcontrol the conduct of the defense of a Third-Party Claim, then except with the written consent of the Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed), the Indemnified Party may not consent to the entry of any judgment or enter into any compromise or settlement with respect to any Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed).
Appears in 3 contracts
Sources: Purchase Agreement (Mesoblast LTD), Purchase Agreement (Mesoblast LTD), Purchase Agreement (Osiris Therapeutics, Inc.)
Third Party Claim. The In the event that the Buyer seeks indemnification obligation pursuant to Section 8.1(b) for each demand and/or claim and/or proceeding and/or action and/or other legal proceeding by third parties made against the Group and/or the Buyer (“Third Party in its capacity as a Service Provider Claim” and the indemnification obligation pursuant “Defendant”, respectively), the Buyer shall provide the Sellers with written notice of such Third Party Claim, shortly after its receipt (provided that failure to Section 8.1(c) for each party provide such notice shall not in its capacity as a Service Receiverany way relieve the Sellers of their indemnity obligations hereunder), in each caseand shall reasonably allow the Sellers to defend against any such Third Party Claim, with respect the Buyer’s reasonable cooperation, if necessary, at the expense of the Sellers. The Sellers shall be entitled to Damages claimed or asserted against assume the handling of a person claiming indemnification under this Agreement civil Third Party Claim, provided that: (an “Indemnified Party”a) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after Sellers have notified the Indemnified Party has Buyer thereof within 10 days of receipt of notice of a Claim, (A) notify the Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before have certified in advance and in writing that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party they will assume control bear all consequences of the defense proceeding without any limits; and settlement of such claim (a “Notice of Assumption”).
(2b) If the Indemnifying Party delivers a Notice of Assumption within the required notice periodDefendant will be entitled to appoint, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over , another attorney on his behalf to handle the defense and settlement case jointly with the attorney on behalf of the claim and diligently defend Sellers. The Sellers shall act within the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status framework of the defenseabove in order to bring such proceeding to conclusion. In any case, and (ii) the Indemnifying Party shall obtain Seller will not be entitled to bring a legal proceeding to conclusion by way of a settlement and/or arrangement and/or submit the dispute underlying the case to be resolved by way of a plea bargain, or admit any liability, unless with the prior written approval notice of the Indemnified Party before entering into any Buyer (other than in a settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred in which there is nothing but a monetary payment by the Indemnified Seller). Neither the Buyer nor the Company may settle or pay any Third Party following which claims in a Third Party Claim if the delivery of defense is assumed by the Seller, without the Seller’s prior written consent or under a Notice of Assumption; providedjudgment that has not been stayed. If the Seller does not assume the defense against a Third Party Claim as provided for above, however, that the Indemnified Party Buyer shall be entitled to employ counsel at conduct the proceeding as it deems fit, including by way of a settlement, and shall not lose its own expense entitlement to participate indemnification thereof or be liable in any way to the handling of the claimSeller as a result thereof. The Indemnifying Party Seller shall not be obligated to indemnify fully cooperate with the Indemnified Party for any amount paid or payable by such Indemnified Party Buyer in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right its efforts to defend the claim in such manner as it may deem appropriate. The Indemnifying against a Third Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this AgreementClaim.
Appears in 2 contracts
Sources: Share Purchase Agreement (SHL Telemedicine LTD), Share Purchase Agreement (SHL Telemedicine LTD)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Indemnified Party in its capacity as a Service Provider and shall notify the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service ReceiverIndemnifying Party, in each casewriting, with respect to Damages claimed or asserted against as soon as is reasonably practicable after being informed, in writing, that facts exist which may result in a person claiming indemnification under this Agreement claim originating from a Person other than the Indemnified Party (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject the estimated quantum of the claim, if known, and in respect of which a right of indemnification given pursuant to this Section 5 may apply. The omission so to notify the following terms and conditions:
(1) The Indemnified Indemnifying Party shall, with reasonable promptness after shall not relieve the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim any duty to indemnify and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served hold harmless which otherwise might exist with respect to such Claimcause unless (and only to that extent) the omission to notify materially prejudices the ability of the Indemnifying Party to exercise its right to defend as provided in this Article 5. Within fifteen The Indemnifying Party shall have the right to elect, by written notice delivered to the Indemnified Party within ten (1510) calendar days following of receipt by the Indemnifying Party of the notice from the Indemnified Party relating to any in respect of the Third Party Claim, but no later than five (5) calendar days before at the date on which any response to a complaint or summons is due if sole expense of the Indemnifying Party has received notice from the Indemnified Party relating Party, to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will participate in or assume control of the defense negotiation, settlement or defence of the Third Party Claim, provided that:
(i) such will be done at all times in a diligent and settlement bona fide matter;
(ii) such right shall be subject to the rights of any insurer or other third party who has potential liability in respect of such claim (a “Notice of Assumption”).Third Party Claim;
(2iii) If the Indemnifying Party delivers a Notice acknowledges, in writing, its obligation to indemnify the Indemnified Party in accordance with the terms contained in this Agreement in respect of Assumption within the required notice period, the Indemnifying that Third Party shall assume control Claim; and
(subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (iiv) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or pay all reasonable out-of-pocket expenses incurred by the Indemnified Party following as a result of such participation or assumption. If the delivery Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party and its counsel and shall have the right to participate in the negotiation, settlement or defence of a Notice such Third Party Claim at its own expense. If the Indemnifying Party does not so elect or, having elected to assume such control, thereafter fails to proceed with the settlement or defence of Assumption; providedany such Third Party Claim, however, that the Indemnified Party shall be entitled to employ counsel assume such control. In such case, the Indemnifying Party shall cooperate where necessary and at its own expense to participate with the Indemnified Party and its counsel in connection with such Third Party Claim and the handling of the claim. The Indemnifying Party shall not be obligated to indemnify bound by the results obtained by the Indemnified Party for any amount paid or payable by with respect to such Indemnified Third Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredClaim.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement (Avino Silver & Gold Mines LTD), Share Purchase Agreement
Third Party Claim. The (1) Within 60 days after the Indemnified Party receives notice of a claim, assertion, legal action, arbitration, investigation, or other matter or proceeding brought by any Person that is not a Party or an Affiliate of a Party and that may result in a Loss for which indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification may be sought under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third-Party Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of shall deliver a Claim, (A) notify the Claim Notice regarding such Third-Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party. The failure of the Indemnified Party a notice (a “to so notify the Indemnifying Party shall not relieve the Indemnifying Party of liability under this Agreement except to the extent that the defense of such Third-Party Claim Notice”) describing, in reasonable detailis materially prejudiced by the failure to give such notice. If the Indemnifying Party or its counsel so requests, the nature of Indemnified Party shall furnish the Claim, and Indemnifying Party with copies of any papers served all pleadings and other information with respect to such Third-Party Claim. Within fifteen The Indemnified Party is authorized, prior to the election by the Indemnifying Party to assume the defense of such Third-Party Claim, to file any motion, answer, or other pleading that it shall deem necessary and appropriate to protect its interests or those of the Indemnifying Party and that is not prejudicial to the Indemnifying Party, all costs of which shall be included as Losses in respect of such claim for indemnification.
(152) calendar At the election of the Indemnifying Party, which shall be made within 45 days following after receipt of notice from the Claim Notice, the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if shall permit the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim Third-Party Claim (to the extent only that such Third-Party Claim relates to a “Notice of Assumption”Loss for which the Indemnifying Party may be liable).
(2) . If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall elects to assume control (subject to Indemnified Party’s right to participate at its own expense) over of the defense and settlement of the claim and diligently defend the claim; providedThird-Party Claim, however, that (i) the Indemnifying Party shall keep any expense incurred by the Indemnified Party fully apprised as to the status thereafter for investigation or defense of the defensematter shall be borne by the Indemnified Party, and (ii) the Indemnified Party shall give all reasonable information and assistance, other than pecuniary, that the Indemnifying Party shall obtain deem necessary and reasonably request to the prior written approval proper defense of such Third-Party Claim. The Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in, but not control, the defense of the Indemnified Third-Party before entering into any settlement of such claim asserting any liability against Claim. If the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing Indemnifying Party elects to defend against such claim or otherwise adversely impacting the Indemnified Party. The Third-Party Claim under this Section 14.5(b)(2), then the Indemnifying Party shall not be liable for any legal fees work diligently to defend or expenses incurred by otherwise resolve the Indemnified Third-Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredClaim.
(3) If the Indemnifying Party does not deliver a Notice elect to assume control of Assumption relating to any claim the defense of the Third-Party Claim within the required notice period45-day period provided in Section 14.5(b)(2), the Indemnified Party will use its commercially reasonable efforts to defend, at the Indemnifying Party’s expense, any claim, assertion, legal action, or other matter to which such other Party’s indemnification under this Article XIV applies until the Indemnifying Party assumes such defense and, if settlement has been offered and the Indemnifying Party has not at such time admitted its obligation to defend and indemnify the Indemnified Party against such Third-Party Claim, the Indemnified Party shall send written notice to the Indemnifying Party of any proposed settlement and the Indemnifying Party shall have the right option for 10 days following receipt of such notice to defend (i) admit in writing its obligation to indemnify the claim Indemnified Party from and against the liability and consent to such settlement, (ii) if liability is so admitted, reject, in its reasonable judgment, the proposed settlement, or (iii) deny liability. Any failure by the Indemnifying Party to respond to such manner as it may deem appropriate. notice shall be deemed to be an election under clause (iii) in the immediately-preceding sentence.
(4) The Indemnifying Party shall promptly reimburse not, without the written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed), enter into any judgment, compromise, settlement, or discharge with respect to the Third-Party Claim without the prior written consent of the Indemnified Party unless such judgment, compromise, settlement, or discharge (w) provides for all reasonable costs and expenses incurred the payment by the Indemnifying Party of money as the sole relief for the claimant, (x) involves no finding or admission of any violation of Law or the rights of any Indemnified Party, (y) does not encumber any of the assets of any Indemnified Party (including attorneys’ feesthe Assets) or agree to any restriction or condition that would apply to or materially adversely affect any Indemnified Party or the conduct of any Indemnified Party’s business, and (z) includes, as a condition of any entry of judgment, settlement, compromise, discharge, or other resolution, a complete and unconditional release of each Indemnified Party from any and all liabilities in connection therewith to the extent it is a claim for which the Indemnifying respect of such Third-Party is obligated to indemnify under this AgreementClaim.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Earthstone Energy Inc), Purchase and Sale Agreement (Earthstone Energy Inc)
Third Party Claim. The indemnification obligation pursuant to If any Party (for purposes of this Section 8.1(b14.3, an "Indemnified Party") becomes aware of a fact, circumstance, claim, situation, demand or other matter for each which it or any other Indemnified Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification has been indemnified under this Agreement (an “Article XIV and which has resulted or could result in a liability owed by the Indemnified Party”) Party to a third party or a claim otherwise advanced by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after against the Indemnified Party has (any such items being herein called a "Third Party Claim"), the Indemnified Party, shall give prompt written notice of a Claim, (A) notify the Third Party Claim to the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit obligated to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served provide indemnity with respect to such Claim. Within fifteen Third Party Claim (15) calendar days following receipt for purposes of this Section 14.3, the "Indemnifying Party"), requesting indemnification therefor, specifying the nature of and specific basis for the Third Party Claim and the amount or estimated amount thereof to the extent then feasible; provided, however, a failure to give such notice from will not waive any rights of the Indemnified Party relating except to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if extent the rights of the Indemnifying Party has received notice from are actually materially prejudiced by such failure. The Indemnifying Party shall have the right to assume the defense or investigation of such Third Party Claim and to retain counsel and other experts to represent the Indemnified Party relating to any Claim at least and shall pay the fees and disbursements of such counsel and other experts. If within 30 days after receipt of the request (or five (5days if litigation is pending) days before that date, the Indemnifying Party shall notify fails to give notice to the Indemnified Party that the Indemnifying Party will assume control assumes the defense or investigation of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Third Party delivers a Notice of Assumption within the required notice periodClaim, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the an Indemnified Party fully apprised as to the status of the defense, may retain counsel and other experts (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal whose fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party and disbursements shall be entitled to employ counsel at its own the expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party) to file any motion, (y) answer or other pleading and take such other action which the Indemnified Party has not provided reasonably deems necessary to protect its interests or those of the Indemnifying Party with until the date on which the Indemnified Party receives such notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If from the Indemnifying Party. If an Indemnifying Party does not deliver a Notice of Assumption relating to assumes the defense or investigation and retains such counsel and other experts, any claim within the required notice period, the Indemnified Party shall have the right to defend retain its own counsel and other experts, but the claim fees and expenses of such counsel and other experts shall be at the expense of the Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party mutually agree to the retention of such counsel and other experts or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would, in the opinion of counsel retained by the Indemnifying Party, be inappropriate due to actual or potential differing interests between them. If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim which the Indemnifying Party defends, or, if appropriate and related to Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any Person. No Third Party Claim may be settled by the Indemnified Party without the consent of the Indemnifying Party, which consent will not be unreasonably withheld. Unless the Indemnifying Party agrees in writing that the Damages to the Indemnified Party resulting from such manner settlement are fully covered by the indemnities provided herein and that such Damages are fully compensable in money, no Third Party Claim may be settled without the consent of the Indemnified Party, which consent will not be unreasonably withheld. Except with respect to settlements entered without the Indemnified Party's consent pursuant to the immediately preceding sentence, to the extent it is determined that the Indemnified Party has no right under this Article XIV to be indemnified by the Indemnifying Party, shall promptly pay to the Indemnifying Party any amounts previously paid or advanced by the Indemnifying Party with respect to such matters pursuant to this Article XIV. After the delivery of notice of a Third Party Claim hereunder, at the reasonable request of the Indemnifying Party the Indemnified Party shall grant the Indemnifying Party and its representatives full and complete access to the books, records and properties of the Indemnified Party to the extent reasonably related to the matters to which the notice relates. The Indemnifying Party will not disclose to any third person (except its representatives) any information obtained pursuant to the preceding sentence which is designated as it confidential by the Indemnified Party and which is not otherwise generally available to the public, except as may deem appropriatebe required by applicable law. The Indemnifying Party shall promptly reimburse request its representatives not to disclose any such information (except as may be required by applicable law). All such access shall be subject to the Indemnified Party for all reasonable costs and expenses incurred by normal safety regulations of the Indemnified Party, including attorneys’ fees, in connection therewith to and shall be granted under conditions which will not unreasonably interfere with the extent it is a claim for which business and operations of the Indemnifying Party is obligated to indemnify under this AgreementIndemnified Party.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Rollins Environmental Services Inc), Stock Purchase Agreement (Safety Kleen Corp/)
Third Party Claim. The Service Recipient’s indemnification obligation pursuant to Section 8.1(b8.1(A) for each Party in its capacity as a Service Provider and the Service Provider’s indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver8.1(B), in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen thirty (1530) calendar days following after receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five Notice (5) days before that datethe “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article VIII with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party will assume control disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the defense and settlement Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of such claim (a “Notice of Assumption”)the Indemnifying Party.
(2) If the Indemnifying Party delivers a Notice of Assumption notifies the Indemnified Party within the required notice periodElection Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 8.1(D)(i)(2) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if it is determined that the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 8.1(D)(i)(2). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 8.1(D)(i)(2). Notwithstanding anything in this Section 8.1(D)(i)(2) to the contrary, the Indemnifying Party shall assume control (subject to may not, without the express written consent of the Indemnified Party’s right , agree to participate at its own expense) over the defense and any compromise or settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval which does not include an unconditional release of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredfrom all Damages.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating fails to any claim notify the Indemnified Party within the required notice periodElection Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 8.1(D)(i)(2), then this Section 8.1(D)(i)(3) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend defend, at the claim in sole cost and expense of the Indemnifying Party (if it is determined that the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such manner as it may deem appropriatedefense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party shall promptly reimburse may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party for all reasonable pursuant to this Section 8.1(D)(i)(3).
(4) Notwithstanding anything in this Section 8.1(D)(i) to the contrary, to the extent (A) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article VIII and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses incurred by of the defense pursuant to Section 8.1(D)(i)(2) or Section 8.1(D)(i)(3), and the Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which Party shall reimburse the Indemnifying Party is obligated to indemnify under this Agreementin full for all of those costs and expenses.
Appears in 2 contracts
Sources: Transition Services Agreement (Noble Corp PLC), Transition Services Agreement (Paragon Offshore Ltd.)
Third Party Claim. In the case of a Third Party Claim, the provisions in the following paragraphs of this Section 8.5 apply.
(a) The indemnification obligation pursuant Indemnifying Party shall have the right, at its expense, to Section 8.1(b) for each participate in but not control the negotiation, settlement or defence of the Third Party in its capacity as a Service Provider and Claim, which control shall rest at all times with the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to unless the following terms and conditionsIndemnifying Party:
(1i) The Indemnified Party shallirrevocably acknowledges in writing complete responsibility for, with reasonable promptness after and agrees to indemnify the Indemnified Party has notice in respect of, the Third Party Claim; and
(ii) furnishes evidence to the Indemnified Party which is satisfactory to the Indemnified Party, acting reasonably, of a Claimits financial ability to indemnify the Indemnified Party, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to in which case the Indemnifying Party a notice may assume such control at its expense through counsel of its choice.
(a “Claim Notice”b) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if If the Indemnifying Party has received notice from the Indemnified Party relating elects to any Claim at least five (5) days before that dateassume control as contemplated in Section 8.5(a), the Indemnifying Party shall notify reimburse the Indemnified Party for all of the Indemnified Party’s out-of-pocket expenses incurred as a result of such participation or assumption. The Indemnified Party shall continue to have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party will consents to the retention of such counsel at its expense or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences), in which case the fees and disbursements of such counsel shall be paid by the Indemnifying Party. The Indemnified Party shall co-operate with the Indemnifying Party so as to permit the Indemnifying Party to conduct such negotiation, settlement and defence and for this purpose shall preserve all relevant documents in relation to the Third Party Claim, allow the Indemnifying Party access on reasonable notice to inspect and take copies of all such documents and require its personnel to provide such statements as the Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the Third Party Claim.
(c) If, having elected to assume control of the defense and negotiation, settlement or defence of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Third Party delivers a Notice of Assumption within the required notice periodClaim, the Indemnifying Party shall assume control (subject thereafter fails to Indemnified Party’s right to participate at its own expense) over the defense and conduct such negotiation, settlement of the claim and diligently defend the claim; providedor defence with reasonable diligence, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that then the Indemnified Party shall be entitled to employ counsel at its own expense to participate in assume such control and the handling of the claim. The Indemnifying Party shall not be obligated to indemnify bound by the results obtained by the Indemnified Party for any amount paid or payable by with respect to such Indemnified Third Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredClaim.
(3d) If the Indemnifying Party does not deliver a Notice fails to assume control of Assumption relating to the defence of any claim within the required notice periodThird Party Claim, the Indemnified Party shall have the exclusive right to defend contest, settle or pay the claim in such manner as it may deem appropriate. The amount claimed and the Indemnifying Party shall promptly reimburse be bound by the results obtained by the Indemnified Party for all reasonable costs and expenses incurred by with respect to such Third Party Claim. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreementconsent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Grandview Gold, Inc.), Purchase and Sale Agreement (Grandview Gold, Inc.)
Third Party Claim. The indemnification obligation pursuant 8.3.1 If an Indemnified Party becomes aware of any third party claim, potential claim, matter or event (a “Third Party Claim”) which might lead to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification claim being made under this Agreement against the Principal Indemnifying Party, the Indemnified Party shall procure that notice of such Third Party Claim is given as soon as reasonably practicable to the Principal Indemnifying Party and, subject to being fully indemnified (on an “after tax basis if appropriate in accordance with the principles in Schedule 1, Part 9) to its reasonable satisfaction by the Principal Indemnifying Party against all reasonable out-of-pocket costs and expenses incurred by the Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are and otherwise subject at all times to the following terms and conditionsthis paragraph 8:
(1i) The Indemnified shall not make and shall procure that is not made any admission of liability, agreement or compromise with any person, body or authority nor consent to the entry of any judgement or final order in relation to any such Third Party shallClaim except with prior consultation with, and the prior agreement (not to be unreasonably withheld or delayed) of, the Principal Indemnifying Party;
(ii) shall take such action as the Principal Indemnifying Party may reasonably request after consultation with reasonable promptness after the Indemnified Party has notice to avoid, dispute, resist, appeal, compromise or defend such Third Party Claim or any adjudication in respect of that Third Party Claim; and
(iii) if so required by the Principal Indemnifying Party in writing shall ensure that the Principal Indemnifying Party is placed in a position to take on or take over the day-to-day conduct of all proceedings or negotiations of whatever nature arising in connection with the Third Party Claim in question (by transferring the proceedings to the Principal Indemnifying Party if so required and where reasonably possible to do so, subject as set out below, through the provision of a Claimpower of attorney, or otherwise) and provide (Aor, if relevant, procure that there is provided) notify such information and assistance as the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Principal Indemnifying Party a notice (a “Claim Notice”) describing, may reasonably require in reasonable detail, connection with the nature preparation for and conduct of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint proceedings or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party negotiations provided that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Principal Indemnifying Party shall keep the Indemnified Party fully apprised as to the status informed of the defense, progress of any proceedings and (ii) the Indemnifying Party shall obtain the prior written approval of consult with the Indemnified Party before entering into prior to taking any settlement of such claim asserting any liability against action which may affect the Indemnified Party, imposing or any obligations business or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting asset of the Indemnified Party. The Indemnifying Party Nothing in this paragraph 8.3.1 shall not be liable for any legal fees or expenses incurred by oblige the Indemnified Party following to grant a power of attorney to the delivery Principal Indemnifying Party in respect of the Third Party Claim.
8.3.2 The Indemnified Party shall be at liberty, without reference to the Principal Indemnifying Party and without prejudice to its rights against the Principal Indemnifying Party or against any other Indemnifying Party, to admit, compromise, settle, discharge or otherwise deal with any Third Party Claim:
(i) if no response is received from the Principal Indemnifying Party within a Notice reasonable period (in respect of Assumption; provided, however, the situation) in relation to any communication from the Indemnified Party notifying the Principal Indemnifying Party that the Indemnified Party intends to admit, compromise, settle, discharge or otherwise deal with that Litigation; or
(ii) if the Indemnified Party is not indemnified as required by paragraphs 7 and 8.3.1 above.
8.3.3 The Principal Indemnifying Party, or RBS (on behalf of the Investors) (should the largest allocation of the Third Party Claim in question be to the Retained Business), shall keep any other Indemnifying Party or Parties to whom the Third Party Claim in question has been allocated informed of significant developments in the Third Party Claim and shall provide updates as reasonably requested by such other Indemnifying Party or Parties.
8.3.4 In the event that there is more than one Indemnifying Party in respect of a particular Third Party Claim:
(i) the Indemnifying Parties shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall severally, but not be obligated jointly, liable to indemnify the Indemnified Party for any amount paid or payable by such in the proportions in which the Third Party Claim has been allocated to their respective Acquired Businesses; and
(ii) to the extent that the Third Party Claim is allocated to the Retained Business, the Investors shall severally indemnify the Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredtheir Consortium Proportions.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.
Appears in 2 contracts
Sources: Consortium and Shareholders’ Agreement (Banco Santander, S.A.), Consortium and Shareholders’ Agreement (Royal Bank of Scotland Group PLC)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed If Parent’s Indemnity Claim involves any Action brought or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) made by a any third party (that third-party claim or assertion, a “Third Party Claim”), are subject then Clorox may elect (by written notice to Parent delivered within 30 days of notice by Parent to Clorox pursuant to Section 10.5(a)) to assume at its expense the following terms and conditions:
(1) The Indemnified defense of such Third Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, including discussions with relevant Governmental Authorities, using counsel reasonably acceptable to Parent. If Clorox does not so elect to assume such defense, then such Third Party Claim shall be defended by Parent in such manner as it reasonably deems appropriate (A) notify and the Party from whom indemnification is sought (costs, fees and expenses of Parent for such defense shall constitute Damages in accordance with Section 10.4), including entering a reasonable settlement thereof in which event the “Indemnifying Party”) of the existence of that Claim settlement plus Parent’s costs, fees and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served expenses with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from thereto shall be the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before Damages in accordance with Section 10.4; provided that date, the Indemnifying Party Parent shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering not enter into any settlement of such claim asserting Third Party Claim without the prior written consent of Clorox, which consent shall not be unreasonably withheld, unless Clorox and its Affiliates have no liability therefor, are not required to admit any liability and will not be bound by any restrictions or limitations on its or their conduct thereafter, and no negative precedent for future Claims, Actions or litigation against Clorox and its Affiliates will be established, in which case no consent shall be required. If the Indemnified PartyThird Party Claim has been assumed by Clorox, imposing any obligations or restrictions on the Indemnified Party, ceasing Clorox shall cooperate with Parent in connection with such defense and shall permit Parent to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party participate therein; provided that Clorox shall not be liable to Parent under the provisions hereof for any legal fees or other expenses incurred by Parent in connection with Parent’s participation in the Indemnified defense of such Third Party following Claim after Clorox has elected to assume the delivery defense thereof so long as Clorox is diligently contesting such Third Party Claim in good faith, unless Parent is advised by outside counsel that an actual or potential conflict of a Notice interest exists between Parent and Clorox or that there are different or additional defenses available to Parent that are not available to Clorox, in which case Parent may engage separate counsel (the reasonable fees and disbursements of Assumption; provided, however, that the Indemnified Party which shall be entitled to employ counsel at its own expense to participate in borne by Clorox). Clorox may not enter into any settlement of such Third Party Claim without the handling prior written consent of the claim. The Indemnifying Party Parent, which shall not be obligated unreasonably withheld, unless Parent and its Affiliates have no liability therefor, are not required to indemnify the Indemnified Party admit any liability and will not be bound by any restrictions or limitations on its or their conduct thereafter, and no negative precedent for any amount paid future Claims, Actions or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption litigation against Parent and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ feesits Affiliates will be established, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreementcase no consent shall be required.
Appears in 2 contracts
Sources: Share Exchange Agreement (Clorox Co /De/), Share Exchange Agreement (Clorox Co /De/)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b8.1(A) for each Party in its capacity as a Service Provider Receiver and the indemnification obligation pursuant to Section 8.1(c8.1(B) for each party in its capacity as a Service ReceiverProvider, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen thirty (1530) calendar days following after receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five Notice (5) days before that datethe “Election Period”), the Indemnifying Party shall notify the Indemnified Party (A) whether the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article VIII with respect to such Claim and (B) whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Claim. If the Indemnifying Party does not notify the Indemnified Party within the Election Period that the Indemnifying Party will assume control disputes its potential liability with respect to such Claim, any Damages resulting from such Claim shall be payable by the Indemnifying Party under this Agreement. The Indemnified Party is hereby authorized, at the sole cost and expense of the defense and settlement Indemnifying Party (but only if the Indemnified Party is entitled to indemnification under this Agreement), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of such claim (a “Notice of Assumption”)the Indemnifying Party.
(2) If the Indemnifying Party delivers a Notice of Assumption notifies the Indemnified Party within the required notice periodElection Period that the Indemnifying Party elects to assume the defense of the Claim, then this Section 8.1(C)(i)(2) shall apply (but not otherwise) and the Indemnifying Party shall have the right to defend, at its sole cost and expense (if it is determined that the Indemnified Party is entitled to indemnification under this Agreement), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 8.1(C)(i)(2). The Indemnified Party may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 8.1(C)(i)(2). Notwithstanding anything in this Section 8.1(C)(i)(2) to the contrary, the Indemnifying Party shall assume control (subject to may not, without the express written consent of the Indemnified Party’s right , agree to participate at its own expense) over the defense and any compromise or settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval which does not include an unconditional release of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredfrom all Damages.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating fails to any claim notify the Indemnified Party within the required notice periodElection Period that the Indemnifying Party elects to assume the defense of the Claim or if the Indemnifying Party elects to assume the defense of the Claim but fails to satisfy its obligations under Section 8.1(C)(i)(2), then this Section 8.1(C)(i)(3) shall apply (but not otherwise) and the Indemnified Party shall have the right to defend defend, at the claim in sole cost and expense of the Indemnifying Party (if it is determined that the Indemnified Party is entitled to indemnification under this Agreement), the Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party to a final conclusion or settled at the discretion of the Indemnified Party. The Indemnified Party shall have full control of such manner as it may deem appropriatedefense and proceedings, including any compromise or settlement of such defense and proceedings, provided that the Indemnifying Party shall not be liable for any such compromise or settlement unless such compromise or settlement is made with the Indemnifying Party’s express written consent (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party shall promptly reimburse may, at its own cost and expense, participate in, but not control, any defense or settlement of any Claim controlled by the Indemnified Party for all reasonable pursuant to this Section 8.1(C)(i)(3).
(4) Notwithstanding anything in this Section 8.1(C)(i) to the contrary, to the extent (A) the Indemnifying Party has delivered a notice to the Indemnified Party that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Article VIII and (B) such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses incurred by of the Indemnifying Party’s defense pursuant to Section 8.1(C)(i)(2) or the Indemnified Party’s defense pursuant to Section 8.1(C)(i)(3), including attorneys’ fees, in connection therewith to and the extent it is a claim for which Indemnified Party shall reimburse the Indemnifying Party is obligated to indemnify under this Agreementin full for all of those costs and expenses.
Appears in 2 contracts
Sources: Transition Services Agreement (Paragon Offshore PLC), Transition Services Agreement (Paragon Offshore Ltd.)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and If the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by Claim involves a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, then the Indemnifying Party shall notify have the right, at its sole cost, expense and ultimate liability regardless of outcome, through counsel of its choice, to litigate, defend, settle, or otherwise attempt to resolve such Claim, except that the Indemnified Party that may elect, at any time and at the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right sole cost, expense and ultimate liability, regardless of outcome, and through counsel of its choice, to participate at its own expense) over litigate, defend, settle or otherwise attempt to resolve such Claim without unreasonable interference with the defense and settlement actions of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Party. In addition:
1. The Indemnifying Party shall obtain the prior written approval consent of the Indemnified Party before entering into any settlement, compromise, admission or any acknowledgment of the validity of a third party Claim or any liability in respect thereof, which consent shall not be unreasonably withheld;
2. No Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Partythird party Claim; and
3. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by entitled to control (but shall be entitled to participate at its own expense in the defense of) and the Indemnified Party following shall be entitled to have sole control over, the delivery defense or settlement, compromise, admission or other acknowledgment of any third party Claim (i) as to which the Indemnifying Party fails to assume the defense within a Notice reasonable length of Assumptiontime or (ii) to the extent the third party Claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, would have a material adverse effect on the business, financial condition, operations or properties of the Indemnified Party; provided, however, that the Indemnified Party shall be entitled make no settlement, compromise, admission or other acknowledgment which would give rise to employ counsel at its own expense to participate in liability on the handling part of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the prior written consent of the Indemnifying Party, (y) the Indemnified Party has which consent shall not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredbe unreasonably withheld.
(3) If 4. The Parties shall cooperate with each other in the Indemnifying Party does not deliver a Notice defense of Assumption relating any third- party action related to any claim within the required notice period, the Indemnified Party this Agreement and shall furnish each other all such further information that they have the right and power to furnish as may reasonably be necessary to defend such third-party action, subject to reasonable confidentiality requirements of the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreementsupplying Parties.
Appears in 1 contract
Third Party Claim. (a) Upon obtaining knowledge thereof Purchaser shall promptly notify the Vendor in writing of (a) any claim or demand; or (b) any assessment or reassessment Taxes, which the Purchaser has determined has given or could give rise to a right of indemnity from the Vendor under this Agreement. In the case of a Tax Reassessment, the Purchaser shall notify the Vendor thereof no later than ten (10) days following the receipt of same. The indemnification obligation failure by the Purchaser to give such notice (and within the required delay) shall not relieve the Vendor from any Liability they shall otherwise have pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) except to the extent the Vendor is actually materially prejudiced by such failure of notice, including in the case of a Tax Reassessment, sufficient time to object to same. If such claim or demand relates to a claim or demand asserted by a third party against the Purchaser or the Corporation or Glutino USA (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party Vendor shall have the right to defend the claim same at its own cost and expense with counsel of its own selection (so long as such counsel is reasonably acceptable to the Purchaser) if within ten (10) days after receiving written notice from the Purchaser of the Third Party Claim, the Vendor delivers written notice to the Purchaser of its intention to assume and defend such Third Party Claims, provided that: (i) the Purchaser shall at all times have the right to fully participate in such manner as it may deem appropriate. The Indemnifying the defence with counsel of its choosing at its own expense; (ii) the Third Party shall promptly reimburse Claim seeks only monetary damages and does not seek any injunctive or other relief against the Indemnified Party for all reasonable costs and expenses incurred by Indemnified PartyPurchaser or any of its Affiliates, including attorneys’ fees, the Corporation or Glutino USA; (iii) the Vendor acknowledges in connection therewith writing its obligation to indemnify and hold the Purchaser Indemnified Parties harmless with respect to the extent it Third Party Claim; and (iv) counsel chosen by the Vendor is satisfactory to the Purchaser, acting reasonably.
(b) If such claim or demand relates to an assessment or reassessment of Taxes against the Purchaser or the Corporation or Glutino USA or any action by a claim for Taxing Authority as a result of which Taxes are claimed against the Indemnifying Party foregoing (each a “Tax Reassessment”), the Vendor shall have the right to defend the same at its own cost and expense with counsel of its own selection (so long as such counsel is obligated reasonably acceptable to the Purchaser) if within ten (10) days after receiving written notice from the Purchaser of the Tax Reassessment, the Vendor delivers written notice to the Purchaser of its intention to assume and defend such Tax Reassessment, provided that: (i) the Purchaser shall at all times have the right to fully participate in the defence with counsel of its choosing at its own expense; (ii) the Vendor acknowledges in writing its obligation to indemnify under this Agreementand hold the Purchaser Indemnified Parties harmless with respect to the Tax Reassessment; and (iii) counsel chosen by the Vendor is satisfactory to the Purchaser, acting reasonably.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as If the claim is based on a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as Loss that may arise from a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) claim made by a third party party, whether a private entity or a Governmental Authority, against the Purchaser and/or the Company (that thirda Third-party claim or assertion, a “Party Claim”), are subject to the following terms and conditionsprocedure must be followed:
(1i) The Indemnified Party shall, with reasonable promptness after When the Indemnified Party has Purchaser duly receives notice of a Third-Party Claim that might give rise to a Loss, will give notice to the Sellers’ Representative to that effect and claim indemnity (a Notice of Third-Party Claim), (A) notify within the Party from whom indemnification is sought (the “Indemnifying Party”) shortest of the existence of that Claim and following two (B2) transmit to the Indemnifying Party a notice periods: (a “Claim Notice”a) describing, in reasonable detail, the nature within thirty (30) Business Days after receipt of the Third-Party Claim; or, and copies of if any papers served with respect to such Claim. Within fifteen (15b) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control end of the defense and settlement first one-third of such claim (a “Notice of Assumption”)the statutory period for responding to the Third-Party Claim.
(2ii) If the Indemnifying Party delivers a The Notice of Assumption within the required notice period, the Indemnifying Third-Party Claim shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense be made in writing and settlement of the claim and diligently defend the claim; provided, however, that include (i) the Indemnifying summons, complaint, pleading or other document(s) served on the Purchaser and/or the Company in connection with the Third-Party shall keep the Indemnified Party fully apprised as to the status of the defense, and Claim; (ii) the Indemnifying Party shall obtain same information as applicable for a Notice of Direct Claim as stated above; and (iii) such other documentation on the prior written approval nature, grounds and background of the Indemnified Third-Party before entering into any settlement Claim as may be reasonably possible within the timeframe for serving the Notice of such claim asserting any Third-Party Claim. Failure by the Purchaser to comply with the time and formal requirements contained in the above shall not relieve the Sellers from liability against for the Indemnified Partyalleged Loss, imposing any obligations or restrictions on but the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party Sellers shall not be liable for any legal fees the Loss (or expenses incurred increased Loss) caused by such failure.
(iii) The Sellers’ Representative shall notify the Indemnified Purchaser whether: (a) they reject that a Loss may eventually result from the Third-Party Claim; or (b) if they accept that a Damage may eventually result from the Third-Party Claim, and shall send such notification within the shorter of the following two (2) periods: (a) within fifteen (15) Business Days after receipt of the delivery of a Notice of AssumptionThird-Party Claim; providedor, howeverif any (b) no later than the date on which the second one-third of the statutory period for responding to the Third-Party Claim expires. If the Sellers’ Representative fails to notify the Purchaser of its response within that term, it will be understood that they have rejected the Indemnified indemnification obligation derived from the Third-Party Claim.
(iv) If the Sellers’ Representative refuses their indemnification obligation, the dispute between the Sellers’ Representative and the Purchaser shall be resolved pursuant to the provisions provided for in section 3 below. In this case, the Purchaser, acting in good faith, will be entitled to employ bring any defense it may consider appropriate against the Third-Party Claim, provided that:
a. The Purchaser shall conduct the defense in good faith with a view to minimizing the potential liability of the Sellers in connection with the Third-Party Claim and, to that end, shall be assisted by a legal counsel if reasonably required under the circumstances and, in general, take all legally and commercially reasonable measures for an adequate defense against the Third-Party Claim.
b. The Sellers, whether directly or through the advisors appointed at its discretion, will be entitled, at their own costs and expense, to all information on the progress of the Third- Party Claim and have at its own cost and expense reasonable access to participate the information and documents relating to it.
(v) If the Sellers’ Representative acknowledges that the Third-Party Claim might give rise to a Loss, the Sellers’ Representative will include in its response: (a) instructions to the handling Purchaser for total or partial opposition, setting out a specific defense, or for accepting the Third-Party Claim, or, alternatively; (b) notify that the Sellers assume the defense against the Third-Party Claim, accepting liability for any Loss that might be caused to the Purchaser under such Third-Party Claim. For these purposes:
a. In the case of (v) (a) above, the Sellers will pay the amount of the claimLoss to the Purchaser and/or the Company within twenty (20) Business Days since the date in which the payment of the relevant Loss to the third-party claimant is to be made.
b. In the case of (v) (b) above, the Sellers will be entitled to bring the defense that they consider most appropriate (including conducting and leading the discussions and formalities with the competent Governmental Authorities) against the Third-Party Claim, contesting, reaching a court-mediated or out-of-court settlement or accepting the Third- Party Claim. The Indemnifying Sellers will be liable for the Losses arising as a result of the Third- Party shall not Claim and will have to pay the amount to the Purchaser and/or the Company within the earlier of twenty (20) Business Days since the date payment to the third-party claimant is to be obligated made or within the deadlines set by a competent Governmental Authorities. The Purchaser, whether directly or through the advisers appointed at the Sellers’ discretion, will be entitled to indemnify request information on the Indemnified progress of the Third- Party for any amount paid Claim and have, at its own cost and expense, free access to all the information and documents relating to that Third-Party Claim.
(vi) Notwithstanding the foregoing, (a) settlement or payable by such Indemnified compromise in relation to the Third-Party in Claim must have the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the express written consent of the Indemnifying PartyPurchaser, which may not be unreasonably withheld; and (yb) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend where the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ feeswould, in connection therewith to the extent opinion of the Purchaser, have or result in a material adverse effect on the course of the Company’s Activity because it is a claim that may affect the rights and obligations arising under relevant contracts, collective labour disputes or claims that may affect the Company’s brands, image or reputation, the Purchaser may, at any time, assume the defense against the Third-Party Claim. In this case, the Purchaser shall provide reasonable evidence to the Sellers of the grounds for such assumption. In any event, the Sellers, themselves or through advisors appointed by the Sellers, shall have reasonable access to the information and documentation relating to the claim in question and the Purchaser shall take into consideration the guidance of the Sellers.
(vii) In cases where the Purchaser assumes the defense, if and to the extent that the Purchaser makes a decision involving a settlement, compromise or a decision not to continue the defense or not to take legal action to that effect, the Purchaser shall inform the Sellers’ Representative (the Defense Completion Notice) who, within fifteen (15) Business Days of receipt of the Defense Completion Notice, shall advise the Purchaser whether: (a) the Sellers’ Representative accepts the Purchaser’s decision (in which case the Indemnifying liability procedure set out in this Annex shall be deployed in the ordinary way); or (b) the Sellers’ Representative disagrees with the decision on the grounds that it prejudices their interests by failing to raise a defense —and thereby giving rise to Losses— in a matter in which they consider that the Company has not engaged in any wrongdoing and their intention to appoint an Independent Expert to determine whether this was indeed the case (the Notice of Disagreement with the Defense Completion Notice)
(viii) Once the Notice of Disagreement with the Defense Completion Notice has been communicated, the Parties shall have fifteen (15) Business Days to appoint an Independent Expert, and the report submitted by the Independent Expert shall be equally binding on the Parties (in case the issue is a legal and not an economic opinion, the Parties agree that the legal division of the Independent Expert shall issue its report, which shall consist of a legal opinion on the disputed issue).
(ix) In the event that the Independent Expert determines that there would have been (a) standing to prove that no wrongful action has been taken to justify the Third-Party is obligated Claim; or (b) that the liability should have been less than that ultimately assumed, there shall be no indemnification obligation on the part of the Sellers, or the indemnification shall only be on the amount indicated by the Independent Expert, respectively, and in addition the Purchaser shall bear the expenses of the Independent Expert. On the other hand, in the event that the Independent Expert determines that the facts of the case are such that there would have been a liability equal to indemnify under or greater than that ultimately assumed, the Sellers shall bear in full the actual Loss suffered by the Company and/or the Purchaser, and the expenses of the Independent Expert shall be borne in full by the Sellers.
(x) In any of the above cases, the Purchaser will provide the information the Sellers need to exercise their right to defense as provided for in this Agreementsection. In addition, the Purchaser shall, and shall use its best efforts to cause the Company to cooperate as necessary, which includes granting powers of attorney or executing other instruments for representation by lawyers or other representatives appointed at the Sellers’ discretion.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by In case Purchaser becomes aware of a third party (that third-party claim or assertionclaim, a “Claim”), are subject to the following terms and conditionsPurchaser shall:
(1a) The Indemnified Party shall, with reasonable promptness as soon as reasonably practicable and in any event within sixty (60) days after the Indemnified Party has date Purchaser became aware of any circumstance giving rise to a third party claim, give notice of a Claim, thereof to Sellers;
(Ab) notify subject to Sellers acknowledging in writing their indemnification obligation and agreeing to hold Purchaser harmless from and against the Party from whom indemnification is sought (the “Indemnifying Party”) entirety of the existence Loss relating to such third party claim, not make any admission of that Claim liability, agreement or compromise with any person, body or authority in relation thereto, without obtaining the prior consent of Sellers (such consent not to be unreasonably withheld);
(c) subject to Sellers acknowledging in writing their indemnification obligation and agreeing to hold Purchaser harmless from and against the entirety of the Loss relating to such third party claim, in any action resist, defend and appeal such claim in the reasonable interest of Sellers;
(Bd) transmit give Sellers, or Sellers’ duly authorised representatives, reasonable access to the Indemnifying Party a notice personnel of Purchaser and to any relevant premises, accounts, documents and records within their respective power, to enable Sellers, or Sellers’ duly authorised representatives, to examine such claim, premises, accounts, documents and records and to take copies or photocopies thereof;
(a “Claim Notice”e) describingallow, in reasonable detailif requested by Sellers, the nature of the Claimany negotiation, and copies of any papers served with respect dispute or litigation relating to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating third party claim to any Claimbe handled by Sellers at Sellers’ costs, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) should Sellers according to Purchaser’s reasonable and well-founded opinion fail or be likely to fail to properly handle such negotiation, dispute or litigation in the Indemnifying Party reasonable interest of Purchaser, Purchaser shall keep have the Indemnified Party fully apprised as right, at its discretion, to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement assume control of such claim asserting action; and
(f) if any liability against the Indemnified Party, imposing of Sellers have made any obligations or restrictions on the Indemnified Party, ceasing payment to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of Purchaser as a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim and Purchaser has the right to recover from any third party any amount payable as a result of facts or circumstances forming the basis of such claim, then Purchaser shall on its sole discretion either assign that right to Sellers or pursue the said recovery at the direction and reasonable cost of the respective Sellers and pass any monies or property recovered over to Sellers. Notwithstanding Section 9.4 (a)-(f), with respect to any third party claim for Taxes: (i) Sellers only have the right to control such claim if it solely relates to Taxes with respect to any taxable year that has ended or taxable period related to the time period prior to the Closing Date; (xii) the Indemnifying Party has delivered a timely Notice Sellers shall not consent to any settlement or compromise of Assumption and such amount was agreed to claim without the written consent of Purchaser, which consent shall not be unreasonably withheld or delayed; (iii) Sellers or Sellers’ Representatives, as the Indemnifying Partycase may be, shall keep Purchaser fully and timely informed with respect to the commencement, status and nature of any such claim; and (yiv) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ feesSellers shall, in connection therewith good faith, allow Purchaser to make comments to Sellers or the extent it is a claim for which Sellers’ Representative, regarding the Indemnifying Party is obligated to indemnify under this Agreementconduct of or positions taken in any such proceeding.
Appears in 1 contract
Sources: Share Purchase Agreement (American Superconductor Corp /De/)
Third Party Claim. The indemnification obligation pursuant In the event that Seller or Buyer shall choose to Section 8.1(b) assert a claim for each Party in its capacity as Loss or potential Loss based upon a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) claim by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject to the following terms and conditions:
party seeking indemnification (1"Indemnified Party") The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) shall notify the Party from whom party against which indemnification is sought (the “"Indemnifying Party”") in writing of such claim, promptly following the occurrence of the existence event giving rise thereto, certifying that such a claim has been asserted and the basis therefor which shall be set forth in reasonable detail ("Notification").
(i) The Indemnifying Party shall acknowledge receipt of that Claim the Notification and advise the Indemnified Party in writing twenty (B20) transmit days after receipt thereof as to whether the Indemnifying Party a notice (a “agrees to such Third Party Claim Notice”) describing, in reasonable detail, and whether the nature defense of the Claim, Third Party Claim shall be undertaken by counsel of the choice of and copies at the expense of any papers served with respect to such Claimthe Indemnifying Party. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if If the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that dateso agrees, the Indemnifying Party shall notify be deemed to have accepted any Indemnifiable Loss suffered arising from such Third Party Claim, the defense of which has been assumed by the Indemnifying Party. If the Indemnifying Party advises the Indemnified Party that it shall undertake the defense of the Third Party Claim, the Indemnified Party shall deliver all the documents related to the Third Party Claim to the Indemnifying Party or to its counsel, after which the responsibility of the Indemnified Party for the defense of the Third Party Claim shall cease, except that the Indemnified Party shall make available all documents, books and records in its possession related to the Third Party Claim, at no expense to the Indemnifying Party, and shall fully cooperate with counsel for the Indemnifying Party, including providing its personnel who are acquainted with the facts or the documents or books and records related to the Third Party Claim.
(ii) If the Indemnifying Party advises the Indemnified Party that the Indemnifying Party will assume control defense of the defense and settlement Third Party Claim will not be undertaken, either the Indemnified Party shall settle such Third Party Claim (in which case, the amount of such claim (a “Notice settlement and all attorneys' fees attendant to the achievement of Assumption”such settlement shall be deemed included in any computation to determine Loss).
(2) If , or the Indemnified Party shall notify the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend identity of the claim; provided, however, that (i) the Indemnifying Party shall keep counsel for the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing who has been selected to defend against such claim or otherwise adversely impacting the Indemnified PartyThird Party Claim. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by fully cooperate with the Indemnified Party following and its counsel to the delivery extent that the Indemnifying Party has knowledge of a Notice the facts or circumstances relating to the Third Party Claim and the Indemnified Party shall cause its counsel to be available to the Indemnifying Party or its counsel to respond to any inquiries of Assumption; provided, however, the Indemnifying Party concerning the progress of such defense. In the event that the Indemnified Party shall be entitled to employ counsel at its own expense to participate assert a claim for Loss as a result of any loss suffered by the Indemnified Party in settling or defending such Third Party Claim, the handling Indemnified Party shall notify the Indemnifying Party in writing of the such claim. The Indemnifying Party shall not be obligated pay all costs related to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of or the defense within thirty (30) days after a demand for the Loss or any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredcomponent part is made.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.
Appears in 1 contract
Third Party Claim. The (1) Within 30 days after the Indemnified Party receives notice of a claim, assertion, legal action, arbitration, investigation, or other matter or proceeding brought by any Person that is not a Party or an Affiliate of a Party and that may result in a Loss for which indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification may be sought under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third-Party Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of shall deliver a Claim, (A) notify the Claim Notice regarding such Third-Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describingParty, in reasonable detail, the nature of the Claim, and including copies of any papers served all pleadings and other information with respect to such Third-Party Claim. Within fifteen (15) calendar days following receipt The failure of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, so notify the Indemnifying Party shall notify not relieve the Indemnifying Party of liability under this Agreement except to the extent that the defense of such Third-Party Claim is materially prejudiced by the failure to give such notice. The Indemnified Party is authorized, prior to the election by the Indemnifying Party to assume the defense of such Third-Party Claim, to file any motion, answer, or other pleading that it shall deem necessary and appropriate to protect its interests or those of the Indemnifying Party and that is not prejudicial to the Indemnifying Party, all costs of which shall be included as Losses in respect of such claim for indemnification.
(2) At the election of the Indemnifying Party, which shall be made within 20 days after receipt of the Claim Notice, the Indemnified Party that shall permit the Indemnifying Party will to assume control of the defense and settlement of such claim Third-Party Claim (to the extent only that such Third-Party Claim relates to a “Notice of Assumption”Loss for which the Indemnifying Party may be liable).
(2) . If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall elects to assume control (subject to Indemnified Party’s right to participate at its own expense) over of the defense and settlement of the claim and diligently defend the claim; providedThird-Party Claim, however, that (i) the Indemnifying Party shall keep any expense incurred by the Indemnified Party fully apprised as to the status thereafter for investigation or defense of the defensematter shall be borne by the Indemnified Party, and (ii) the Indemnified Party shall give all reasonable information and assistance, other than pecuniary, that the Indemnifying Party shall obtain deem necessary and reasonably request to the prior written approval proper defense of such Third-Party Claim. The Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in, but not control, the defense of the Indemnified Third-Party before entering into any settlement of such claim asserting any liability against Claim. If the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing Indemnifying Party elects to defend against such claim or otherwise adversely impacting the Indemnified Party. The Third-Party Claim under this Section 14.5(b), then the Indemnifying Party shall not be liable for any legal fees work diligently to defend or expenses incurred by otherwise resolve the Indemnified Third-Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claimClaim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.{JK01396073.28 }
(3) If the Indemnifying Party does not deliver a Notice elect to assume control of Assumption relating to any claim the defense of the Third-Party Claim within the required notice period20-day period provided in Section 14.5(b), the Indemnified Party will use its commercially reasonable efforts to defend, at the Indemnifying Party’s expense, any claim, assertion, legal action, or other matter to which such other Party’s indemnification under this Article XIV applies until the Indemnifying Party assumes such defense and, if settlement has been offered and the Indemnifying Party has not at such time admitted its obligation to defend and indemnify the Indemnified Party against such Third-Party Claim, the Indemnified Party shall send written notice to the Indemnifying Party of any proposed settlement and the Indemnifying Party shall have the right option for 10 days following receipt of such notice to defend (i) admit in writing its obligation to indemnify the claim Indemnified Party from and against the liability and consent to such settlement, (ii) if liability is so admitted, reject, in its reasonable judgment, the proposed settlement, or (iii) deny liability. Any failure by the Indemnifying Party to respond to such manner as it may deem appropriate. notice shall be deemed to be an election under clause (iii) in the immediately preceding sentence.
(4) The Indemnifying Party shall promptly reimburse not, without the written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed), enter into any judgment, compromise, settlement, or discharge with respect to the Third-Party Claim without the prior written consent of the Indemnified Party unless such judgment, compromise, settlement, or discharge (w) provides for all reasonable costs and expenses incurred the payment by the Indemnifying Party of money as the sole relief for the claimant, (x) involves no finding or admission of any violation of Law or the rights of any Indemnified Party, (y) does not encumber any of the assets of any Indemnified Party (including attorneys’ feesthe Assets) or agree to any restriction or condition that would apply to or materially adversely affect any Indemnified Party or the conduct of any Indemnified Party’s business, and (z) includes, as a condition of any entry of judgment, settlement, compromise, discharge, or other resolution, a complete and unconditional release of each Indemnified Party from any and all liabilities in connection therewith to the extent it is a claim for which the Indemnifying respect of such Third-Party is obligated to indemnify under this AgreementClaim.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Earthstone Energy Inc)
Third Party Claim. The indemnification obligation pursuant In the event the facts giving rise to Section 8.1(b) the claim for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Article 10 shall involve any action or threatened claim or demand by a any third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after against the Indemnified Party has (a "Third Party Claim"), within the earlier of, as applicable, ten (10) days after receiving notice of the filing of a Claim, lawsuit or thirty (A30) notify the Party from whom indemnification is sought (the “Indemnifying Party”) days after receiving notice of the existence of that a claim, demand, suit or proceeding (each a "Claim") giving rise to the claim for indemnification, the Indemnified Party shall send written notice of such Claim and (B) transmit to the Indemnifying Party a notice (a “the "Claim Notice”) describing, in reasonable detail, the nature "). The failure of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if give the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, Notice shall not release the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claimfrom liability under this Article 10; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses losses incurred by the Indemnified Party following which would not have been incurred but for the delay in the delivery of a Notice of Assumption; providedof, howeveror the failure to deliver, that the Indemnified Claim Notice. Except as set forth below, the Indemnifying Party shall be entitled to employ counsel defend such Claim in the name of the Indemnified Party at his or its own expense to participate in the handling and through counsel of the claimhis or its own choosing. The Indemnifying Party shall not be obligated to indemnify give the Indemnified Party for any amount paid or payable by such notice in writing within ten (10) days after receiving the Claim Notice from the Indemnified Party in the settlement event the Claim is one involving an instituted suit or proceeding, or otherwise within thirty (30) days, of any claim if (x) his or its intent to do so. If the Indemnifying Party has delivered chooses to defend or prosecute a timely Notice Third Party Claim, all the Indemnified Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of Assumption records and information that are reasonably relevant to such amount was agreed Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent, which consent of shall not be unreasonably withheld, delayed or conditioned. The Indemnified Party may elect, by notice in writing to the Indemnifying Party, (y) the Indemnified Party has not provided to continue to participate through his or its own counsel, at his or its expense, but the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend control the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse defense of the Claim with counsel reasonably acceptable to the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to . In the extent it is a claim for which event that the Indemnifying Party is obligated controlling the defense of the Claim and shall have negotiated a settlement thereof, which proposed settlement is final and unconditional as to indemnify under this Agreementthe parties thereto and contains an unconditional release of the Indemnified Party, without the Indemnified Party being liable for damages of any kind or nature or being otherwise required to pay any amount of money to any third party and does not include the imposition of any restrictions on the part of the Indemnified Party or require that the Indemnified Party make an admission of guilt or liability or deliver a confession of judgment, or any other non-financial obligation which, in the reasonable judgment of the Indemnified Party, renders such settlement unacceptable, the Indemnified Party shall consent to such settlement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Home Interiors & Gifts Inc)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(i) for each Party If the claim or demand set forth in its capacity as the Notice of Claim is a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed claim or demand asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject New WCG will have 15 calendar days after the date of receipt by New WCG of the Notice of Claim (the "Notice Date") to notify the following terms and conditions:Indemnified Parties in writing of the election by New WCG to defend the Third Party Claim on behalf of the Indemnified Parties.
(1ii) The Indemnified If New WCG elects to defend a Third Party shall, with reasonable promptness after Claim on behalf of the Indemnified Party has notice of a ClaimParties, (A) notify the Party from whom indemnification is sought (Indemnified Parties will make available to New WCG and their agents and representatives all records and other materials in their possession which are reasonably required in the “Indemnifying Party”) defense of the existence of that Claim and (B) transmit to the Indemnifying Third Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies New WCG will pay all reasonable expenses payable in connection with the defense of any papers served with respect to such Claim. Within fifteen the Third Party Claim as they are incurred (15) calendar days following receipt of notice from the Indemnified Party relating subject to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”applicable limitations set forth in Section 6.1).
(2iii) In no event may New WCG settle or compromise any Third Party Claim without the Indemnified Parties' prior written consent, which may not be unreasonably withheld or delayed.
(iv) If the Indemnifying New WCG elects to defend a Third Party delivers a Notice of Assumption within the required notice periodClaim, the Indemnifying Party shall assume control (subject to Indemnified Party’s Parties will have the right to participate at its own expense) over in the defense and settlement of the claim and diligently defend the claim; providedThird Party Claim, however, that (i) the Indemnifying Party shall keep at the Indemnified Party fully apprised as Parties' expense (and without the right to the status of the defenseindemnification for such expense under this Agreement), and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the reasonable fees and expenses of counsel retained by the Indemnified Party shall Parties will be entitled to employ counsel at its own the expense to participate in of New WCG if (A) the handling use of the claim. The Indemnifying Party counsel chosen by New WCG to represent the Indemnified Parties would present such counsel with a conflict of interest; (B) the parties to such proceeding include both Indemnified Parties and New WCG and there may be legal defenses available to Indemnified Parties which are different from or additional to those available by New WCG; (C) within 10 calendar days after being advised by New WCG of the identity of counsel to be retained to represent Indemnified Parties, they shall have objected to the retention of such counsel for valid reason, and New WCG shall not be obligated have retained different counsel satisfactory to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.Parties; or
Appears in 1 contract
Sources: Investment Agreement (Williams Communications Group Inc)
Third Party Claim. The If any of the Buyer Indemnified Parties or the Seller Indemnified Parties intends to seek indemnification obligation pursuant to Section 8.1(bthe provisions of Sections 9.2 or 9.3 hereof (each an "Indemnified Party"), the respective Indemnified Party shall promptly give notice hereunder to the other Party (the "Indemnifying Party") for each after obtaining written notice of any claim, investigation, or the service of a summons or other initial or continuing legal or administrative process or Proceeding in any action instituted against the Indemnified Party in its capacity as a Service Provider and to which recovery or other action may be sought against the indemnification obligation Indemnified Party pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed Sections 9.2 or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) 9.3 hereof. The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to shall permit the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, to assume the nature of the Claim, and copies defense of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the any litigation resulting from such claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall not be entitled required to employ counsel at its own expense permit such an assumption of the defense of any claim or Proceeding which, if not first paid, discharged or otherwise complied with, would result in a material interruption or disruption of the business of the Indemnified Party, or any material part thereof. Notwithstanding the foregoing, the right to participate indemnification hereunder shall not be affected by any failure of the Indemnified Party to give such notice (or by delay by the Indemnified Party in giving such notice) unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of the failure to give, or delay in giving, such notice. If the Indemnifying Party assumes the defense of such claim, investigation or Proceeding resulting therefrom, the obligations of the Indemnifying Party hereunder as to such claim, investigation or Proceeding shall include taking all steps necessary in the handling defense or settlement of such claim, investigation or Proceeding and holding the Indemnified Party harmless from and against any and all Losses arising from, in connection with or incident to any settlement approved by the Indemnifying Party or any judgment entered in connection with such claim, investigation or Proceeding (subject to the remaining Allowed Deductible, if any, which shall be paid by Buyer, and indemnification limits set forth in this Agreement), except where, and only to the extent that, the Indemnifying Party has been prejudiced by the actions or omissions of the Indemnified Party. Notwithstanding the foregoing, the assumption of the defense of any claim, investigation or Proceeding by the Indemnifying Party shall not constitute an admission of responsibility to indemnify or in any manner impair or restrict the Indemnifying Party's rights to later seek to be reimbursed its costs and expenses if indemnification under this Agreement with respect to such claim, investigation or Proceeding was not required. The Indemnifying Party shall not, in the defense of such claim or any Proceeding resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned) or enter into any settlement (except with the written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned) unless (i) there is no finding or admission of any violation of Applicable Law and no material effect on any claims that could reasonably be expected to be made against the Indemnified Party, (ii) the sole relief provided is monetary damages that are paid in full for Losses (subject to the remaining Allowed Deductible, if any, which will be paid by Buyer, but which payment does not exceed the indemnification limits set forth in this Agreement), and (iii) the settlement shall include the giving by the claimant or the plaintiff to the Indemnified Party a release from all liability in respect to such claim or litigation. If the Indemnifying Party assumes the defense of such claim, investigation or Proceeding resulting therefrom, the Indemnified Party shall be entitled to participate in the defense of the claim, but solely by observation and comment to the Indemnifying Party, and the counsel selected by the Indemnified Party shall not appear on its behalf in any Proceeding arising hereunder. The Indemnified Party shall bear the fees and expenses of any additional counsel retained by it to participate in its defense unless any of the following shall apply: (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party, or (ii) the Indemnifying Party's legal counsel shall advise the Indemnifying Party in writing, with a copy to the Indemnified Party, that there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel. If clause (i) or (ii) in the immediately preceding sentence is applicable, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party to represent the Indemnified Party and such Indemnified Party's counsel may appear on its behalf in any Proceeding, notwithstanding the first sentence of this paragraph. In no event, however, shall the Indemnifying Party be obligated to indemnify pay the costs and expenses of more than one such separate counsel for any one complaint, claim, action or Proceeding in any one jurisdiction. If the Indemnifying Party does not assume the defense of any such claim by a Third Party or litigation resulting therefrom after receipt of notice from the Indemnified Party, the Indemnified Party for any amount paid may defend against such claim or payable by litigation in such manner as it reasonably deems appropriate. The Indemnified Party in the settlement of any may not settle such claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to or litigation without the written consent of the Indemnifying Party, (y) the Indemnified which consent shall not be unreasonably withheld. Each Party has not provided the shall cooperate in good faith and in all respects with each Indemnifying Party and its representatives (including without limitation its counsel) in the investigation, negotiation, settlement, trial and/or defense of any Proceedings (and any appeal arising therefrom) or any claim. The Parties shall cooperate with notice each other in any notifications to and information requests of such claim and a reasonable opportunity to respond theretoany insurers. No individual representative of any Person, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to their respective Affiliates, shall be personally liable for any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify Loss or Losses under this Agreement, except as specifically agreed to by said individual representative.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant In the event the facts giving rise to Section 8.1(b) the claim for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Article VIII shall involve any action or threatened claim or demand by a any third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after against the Indemnified Party has (a "Third Party Claim"), within the earlier of, as applicable, ten (10) days after receiving notice of the filing of a Claim, lawsuit or thirty (A30) notify the Party from whom indemnification is sought (the “Indemnifying Party”) days after receiving notice of the existence of that a claim, demand, suit or proceeding (each a "Claim") giving rise to the claim for indemnification, the Indemnified Party shall send written notice of such Claim and (B) transmit to the Indemnifying Party a notice (a “the "Claim Notice”") describing, in reasonable detail, the nature . The failure of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if give the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, Notice shall not release the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claimfrom liability under this Article VIII; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses losses incurred by the Indemnified Party following which would not have been incurred but for the delay in the delivery of a Notice of Assumption; providedof, howeveror the failure to deliver, that the Indemnified Claim Notice. Except as set forth below, the Indemnifying Party shall be entitled to employ counsel defend such Claim in the name of the Indemnified Party at his or its own expense to participate in the handling and through counsel of the claimhis or its own choosing. The Indemnifying Party shall not be obligated to indemnify give the Indemnified Party for any amount paid or payable by such notice in writing within ten (10) days after receiving the Claim Notice from the Indemnified Party in the settlement event the Claim is one involving an instituted suit or proceeding, or otherwise within thirty (30) days, of any claim if (x) his or its intent to do so. If the Indemnifying Party has delivered chooses to defend or prosecute a timely Notice Third Party Claim, all the Indemnified Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of Assumption records and information that are reasonably relevant to such amount was agreed Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent, which consent of shall not be unreasonably withheld, delayed or conditioned. The Indemnified Party may elect, by notice in writing to the Indemnifying Party, (y) the Indemnified Party has not provided to continue to participate through his or its own counsel, at his or its expense, but the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend control the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse defense of the Claim with counsel reasonably acceptable to the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to . In the extent it is a claim for which event that the Indemnifying Party is obligated controlling the defense of the Claim and shall have negotiated a settlement thereof, which proposed settlement is final and unconditional as to indemnify under this Agreement.the parties thereto and contains an unconditional release of the Indemnified Party, without the Indemnified Party being liable for damages of any kind or nature or being otherwise required to pay any amount of money to any third party and does not include the imposition of any restrictions on the part of the Indemnified Party or require that the Indemnified Party make an admission of guilt or liability or deliver a confession of judgment, or any other non-financial obligation which, in the reasonable judgment of the Indemnified Party, renders such settlement unacceptable, the Indemnified Party shall consent to such settlement. STOCK PURCHASE AGREEMENT - PAGE 30
Appears in 1 contract
Sources: Stock Purchase Agreement (Home Interiors & Gifts Inc)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(a) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed If Buyer's Indemnity Claim involves any Action brought or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) made by a any third party (that third-party claim or assertion, a “Claim”"THIRD PARTY CLAIM"), are subject then the RP Equityholders' Agent may elect (by written notice to Buyer) to assume at its expense the following terms defense of such Third Party Claim using counsel reasonably acceptable to Buyer; provided that the RP Equityholders' Agent may not so elect if Buyer has been pursuing the defense thereof for at least six months and conditions:
the RP Equityholders' Agent's assumption of such defense would materially prejudice Buyer or the defense. If the RP Equityholders' Agent does not so elect to assume such defense, then such Third Party Claim shall be defended by Buyer in such manner as it reasonably deems appropriate (1) The Indemnified Party shalland the costs, with fees and expenses of Buyer for such defense shall constitute Losses), including entering a reasonable promptness after settlement thereof in which event the Indemnified Party has notice of a Claimsettlement plus the Buyer's costs, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim fees and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served expenses with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from thereto shall be the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before Loss; provided that date, the Indemnifying Party Buyer shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering not enter into any settlement of such claim asserting any Third Party Claim without the prior written consent of the RP Equityholders' Agent, which consent shall not be unreasonably withheld unless RP and the RP Equityholders have no liability against therefor in which case no consent shall be required. RP and the Indemnified PartyRP Equityholders' Agent shall cooperate with Buyer in connection with such defense and shall permit Buyer to participate therein; provided, imposing any obligations or restrictions on that RP (and the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party RP Equityholders) shall not be liable to Buyer under the provisions hereof for any legal fees or other expenses incurred by Buyer in connection with Buyer's participation in the Indemnified defense of such Third Party following Claim after the delivery RP Equityholders' Agent has elected to assume the defense thereof so long as the RP Equityholders' Agent is diligently contesting such Third Party Claim in good faith, unless a conflict of interest exists between Buyer and RP (or the RP Equityholders) requiring each of Buyer, on the one hand, and RP or the RP Equityholders, on the other hand, to have separate counsel, in which case Buyer may engage separate counsel (the fees and costs of which shall be borne by RP (or, solely with respect to RP Equityholder Matters, in the event RP does not or cannot pay such fees and costs, by the RP Equityholders in the Designated Proportions)). Neither RP nor the RP Equityholders' Agent may enter into any settlement of a Notice Third Party Claim without the prior written consent of Assumption; providedBuyer which will not be unreasonably withheld.
(b) Notwithstanding the foregoing, howeverif a Third Party Claim includes or would reasonably be expected to include both a claim for Taxes that are Excluded Taxes and a claim for Taxes that are not Excluded Taxes, and such claim for Taxes that are Excluded Taxes is not separable from such a claim for Taxes that are not Excluded Taxes, the Indemnified Party RP Equityholders' Agent (if the claim for Taxes that are Excluded Taxes exceeds or reasonably would be expected to exceed in amount the claim for Taxes that are not Excluded Taxes) or otherwise Buyer (the RP Equityholders' Agent or Buyer, as the case may be, the "CONTROLLING PARTY") shall be entitled to employ counsel at its own expense control the defense of such Third Party Claim (such Third Party Claim, a "TAX CLAIM"). In such case, the other party (the RP Equityholders' Agent or Buyer, as the case may be, the "NON-CONTROLLING PARTY)" shall be entitled to participate fully (at the Non-Controlling Party's sole expense) in the handling conduct of such Tax Claim and the claim. The Indemnifying Controlling Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by settle such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to Tax Claim without the written consent of the Indemnifying Party, such Non-Controlling Party (y) the Indemnified Party has which consent shall not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriatebe unreasonably withheld). The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to of conducting the extent it is a claim for which defense of such Tax Claim shall be reasonably apportioned based on the Indemnifying Party is obligated to indemnify under this Agreementrelative amounts of the Tax Claim that are Excluded Taxes and that are not Excluded Taxes.
Appears in 1 contract
Sources: Asset Purchase Agreement (Readers Digest Association Inc)
Third Party Claim. The indemnification obligation pursuant In the event that ▇▇▇▇, BCI or any other party entitled to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Section 11.02 hereof shall choose to assert a claim for Loss or potential Loss based upon a claim by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject to the following terms and conditions:
party seeking indemnification (1"Indemnified Party") The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) shall notify the Party from whom party against which indemnification is sought (the “"Indemnifying Party”") in writing of such claim, promptly following the occurrence of the existence event giving rise thereto, certifying that such a claim has been asserted and the basis therefor which shall be set forth in reasonable detail ("Notification").
(i) The Indemnifying Party shall acknowledge receipt of that Claim the Notification and advise the Indemnified Party in writing twenty (B20) transmit days after receipt thereof as to whether the Indemnifying Party a notice (a “agrees to such Third Party Claim Notice”) describing, in reasonable detail, and whether the nature defense of the Claim, Third Party Claim shall be undertaken by counsel of the choice of and copies at the expense of any papers served with respect to such Claimthe Indemnifying Party. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if If the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that dateso agrees, the Indemnifying Party shall notify be deemed to have accepted any indemnifiable Loss suffered arising from such Third Party Claim, the defense of which has been assumed by the Indemnifying Party. If the Indemnifying Party advises the Indemnified Party that it shall undertake the defense of the Third Party Claim, the Indemnified Party shall deliver all the documents related to the Third Party Claim to the Indemnifying Party or to its counsel, after which the responsibility of the Indemnified Party for the defense of the Third Party Claim shall cease, except that the Indemnified Party shall make available all documents, books and records in its possession related to the Third Party Claim, at no expense to the Indemnifying Party, and shall fully cooperate with counsel for the Indemnifying Party, including providing its personnel who are acquainted with the facts or the documents or books and records related to the Third Party Claim.
(ii) If the Indemnifying Party advises the Indemnified Party that the Indemnifying Party will assume control defense of the defense and settlement Third Party Claim will not be undertaken, either the Indemnified Party shall settle such Third Party Claim (in which case, the amount of such claim (a “Notice settlement and all attorneys' fees attendant to the achievement of Assumption”such settlement shall be deemed included in any computation to determine Loss).
(2) If , or the Indemnified Party shall notify the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend identity of the claim; provided, however, that (i) the Indemnifying Party shall keep counsel for the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing who has been selected to defend against such claim or otherwise adversely impacting the Indemnified PartyThird Party Claim. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by fully cooperate with the Indemnified Party following and its counsel to the delivery extent that the Indemnifying Party has knowledge of a Notice the facts or circumstances relating to the Third Party Claim and the Indemnified Party shall cause its counsel to be available to the Indemnifying Party or its counsel to respond to any inquiries of Assumption; provided, however, the Indemnifying Party concerning the progress of such defense. In the event that the Indemnified Party shall be entitled to employ counsel at its own expense to participate assert a claim for Loss as a result of any loss suffered by the Indemnified Party in 66 settling or defending such Third Party Claim, the handling Indemnified Party shall notify the Indemnifying Party in writing of the such claim. The Indemnifying Party shall not be obligated pay all costs related to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of or the defense within thirty (30) days after a demand for the Loss or any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredcomponent part is made.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as If the Claim originates from a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) claim by a third party Third Party (that third-party claim or assertion, a the “Third Party Claim”), are subject to the following terms and conditionsthen:
(1i) The Indemnified no admission of liability (whether express or implied, including by way of inaction to make counterclaims or make any appeal or use any recourse) shall be made by or on behalf of the Buyer or any of the Companies, and the claim shall not be disposed of or settled without the prior written consent of the Sellers or the Guarantors (such consent not to be unreasonably withheld or delayed);
(ii) provided that the Third Party shallClaim (i) relates to a matter which would entitle the Buyer to make a Claim in relation to a breach of Article 9.11 and/or under Article 12.2, with reasonable promptness and/or (ii) was initiated by a Governmental Authority in Senegal, Ivory Coast or Monaco (as the case may be), the Guarantors may elect to conduct the defense of the Third Party Claim; provided further that in the event that at any point in time (including after the Indemnified Sellers have issued a Take Over notice as provided in (iv) below), the Third Party has Claim involves application of Anti-Corruption Laws, the Take over Notice shall be deemed to have been cancelled and the Sellers shall no longer be entitled to conduct the defense of the Third Party Claim;
(iii) if the Sellers or the Guarantors have not elected to conduct the defense of the Third Party Claim in accordance with paragraph (iv) below, the Buyer shall conduct, and shall procure that the concerned Company conducts, the defense of the Third Party Claim diligently and in good faith using all means and defenses available to it. Upon the Sellers or Guarantors’ request, the Buyer shall give, and shall procure that the relevant Company gives, to the Sellers or the Guarantors and their advisers the opportunity to comment with respect to the defense of the Third Party Claim and shall act in accordance with the Sellers or Guarantors’ reasonable requests with respect to the conduct of the defense of the claim;
(iv) provided that the conditions set forth in (ii) above are met, at the option and upon notice of (a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying PartyTake Over Notice”) of the existence Guarantors, the Buyer shall permit the Guarantors to assume the defense of that any Third Party Claim and any litigation or proceeding resulting therefrom notably by causing the relevant Company to retain lawyers and other professional advisers and act as per the Sellers or Guarantors’ instructions as far as the defense of such Third Party Claim is concerned, and to take such action as the Guarantors’ shall deem reasonably necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest such claim or liability (B) transmit including, without limitation, making counterclaims or other claims against third party), provided that the Buyer may participate in such defense at the Buyer’s expense by being given the opportunity to comment with respect to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature defense of the Third Party Claim.
(v) The Party which assumes the defense of any Third Party Claim shall:
(a) permit the other Party’s Representative and his/its advisers timely and reasonable access during normal office hours to relevant employees, premises, documents and records (including the right to take copies (subject, as regards the Sellers/Guarantors, to signature of appropriate confidentiality agreements) at such Party’s expense of such documents and records) for the purposes of investigating the Third Party Claim and enabling the other Party to take any action permitted by this Article 12;
(b) keep the other Party promptly and effectively informed of all material developments in relation to the Third Party Claim and consult with the other Party’s Representative concerning any material decisions required or proposed to be made in relation to the Third Party Claim, and copies of any papers served with respect take into account the other Party’s Representative’s comments and observations in relation to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control conduct of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Third Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith Claim to the extent it is possible having regard to the corporate interest (intérêt social) of the Companies and/or the Buyer; and
(c) act effectively, in a claim for which timely manner and in defending the Indemnifying Third Party is obligated to indemnify under this AgreementClaim.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant In the event that any third party delivers notice of a claim (in Court or directly to Section 8.1(bthe Buyer) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement which any Seller may become obligated to indemnify Buyer pursuant to Clause 6 (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject the Buyer shall give notice to the following terms Seller Representative and conditionssuch Seller from whom an indemnity is sought of such a Third Party Claim by serving notice of a Claim in accordance with Clause 7.2 above and no later than ten (10) Business Days after the day when the Buyer was delivered the Third Party Claim. The provisions in Clause 7.2 above shall also apply to any Claim Notice delivered to the Seller Representative based on a Third Party Claim. Additionally, the Seller Representative may state in the Response that they (or the Sellers) will undertake the defense of the Buyer in the Third Party Claim, in which case the Buyer shall:
(1a) The Indemnified Party shallpromptly execute as many powers of attorney (including general ▇▇▇▇▇▇ to conduct litigation) in favor of as many attorneys and solicitors as the Seller Representative may reasonably request, provided that the Buyer may however appoint its own co counsel (at the Buyer’s expense), in which case no action will be taken, or strategy will be followed by the Seller Representative without at least consulting with reasonable promptness after the Indemnified Party has notice of Buyer;
(b) make available to the Seller Representative on a Claimtimely basis all documents, (A) notify records and other materials in the Party from whom indemnification is sought (the “Indemnifying Party”) possession of the existence of that Buyer required by the Seller Representative for its use in defending the Third Party Claim and shall otherwise cooperate with the Seller Representative in the defense of such a claim;
(Bc) transmit to not have the Indemnifying right to, and not take any action to, settle, adjust, accept or compromise such Third Party a notice (a “Claim Notice”) describing, in reasonable detail, without the nature consent of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of AssumptionSeller Representative; provided, however, that the Indemnified Seller Representative shall not unreasonably withhold or delay such consent; and
(d) be under a duty of diligence when directing the defense of a Third Party Claim and shall make all reasonable efforts to mitigate the Damage that may result from any such Third Party Claim. If the Seller Representative (or Sellers) does not undertake the defense of the Third Party Claim the Buyer will be entitled to employ counsel at its own expense to participate in conduct the handling defense of the claimThird Party Claim. The Indemnifying In this case, the Buyer undertakes to inform the Seller Representative no less frequently than on a monthly basis about the evolution of the Third Party shall not Claim or, earlier, if there is a relevant action to be obligated taken or a court resolution is made in relation to the same. For the avoidance of doubt, a Third Party Claim resulting from a matter described in Clause 6.2.1, 6.2.2 or 6.2.3 for which the Sellers are liable, will cause an obligation on the Sellers to indemnify the Indemnified Buyer or the Company, subject to the other limitations set forth in Clause 6, as soon as a final judgment is issued on the Third Party for Claim requesting a payment or a settlement is reached with the third party and the Sellers will be bound by any amount paid judgment or payable settlement issued on a Third Party Claim by such Indemnified Party in a Court of competent jurisdiction, even if the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent defense of the Indemnifying Party, (y) claim or settlement has been undertaken by the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredBuyer.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.
Appears in 1 contract
Third Party Claim. The indemnification obligation Upon receipt by any person seeking to be indemnified pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and this Article 9 (the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified PartyIndemnitee”) by a third party of notice of any legal proceedings, (that third-party claim or assertion, each a “Claim”)) against it which has or is expected to give rise to a claim for Losses, are subject the Indemnitee shall give prompt written notice thereof (which shall be within ten (10) days after receipt by the Indemnitee of such Claim) to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party person from whom indemnification is sought which it seeks to be indemnified (the “Indemnifying PartyIndemnitor”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing), in reasonable detail, indicating the nature of such Claim and the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claimbasis therefor; provided, however, that any delay or failure by the Indemnitee to give notice to the Indemnitor shall relieve the Indemnitor of its obligations hereunder only to the extent, if at all, that it is materially prejudiced by reason of such delay or failure. The Indemnitor shall have thirty (30) days after receipt of the Indemnitee’s notice to elect, at its option, to assume the defense of, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such Claim. If the Indemnitor shall undertake to compromise or defend any such Claim, it shall promptly notify the Indemnitee of its intention to do so. Notwithstanding an election by the Indemnitor to assume the defense of such Claim, (i) the Indemnifying Party Indemnitee shall keep have the Indemnified Party fully apprised as right to employ at its cost separate counsel and to participate in the status defense of the defensesuch Claim, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party Indemnitee shall have the right at any time after the Indemnitor assumes the defense of such Claim to defend assume the claim in defense of such manner as Claim if the Indemnitor subsequently determines that it may deem appropriate. The Indemnifying Party shall promptly reimburse does not believe the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it Claim is a claim one for which the Indemnifying Party Indemnitee is obligated entitled to indemnify indemnification, compensation or reimbursement under this AgreementArticle 9 and requests that the Indemnitee assume the defense of such Claim (in which case the Indemnitee may retain the legal counsel previously retained by the Indemnitor to assist in the defense of such Claim). The Indemnitee and Indemnitor and their counsel shall cooperate fully in the compromise or defense of any Claim subject to this Article 9 and keep one another informed of all developments relating to any such Claims, and provide copies of all relevant correspondence and documentation relating thereto. If an Indemnitor receiving a notice of Claim does not elect to defend such Claim within the thirty (30) day period referred to above, the Indemnitee shall have the right, in addition to any other right or remedy it may have hereunder, at the Indemnitor’s expense, to defend such Claim. The Indemnitee’s defense of, or participation in the defense of, any such Claim shall not in any way diminish or lessen the obligations of the Indemnitor under this Article 9. In no event may an Indemnitor or an Indemnitee settle or compromise any Claim without the consent of the other (which consent will not be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(a) In the event any claim for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Article VII is based on a claim asserted by a third party (that third-party claim or assertioni.e., a Person other than a party hereto or its Affiliates or agents), including any derivative or other Claims brought on behalf of an Indemnified Party (a “Third-Party Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify have the right, exercisable by written notice to the Indemnified Party that within thirty (30) days of receipt of a Claims Notice, in which the Indemnifying Party will acknowledges its obligation to indemnify and hold harmless the Indemnified Party in full, to assume and conduct the defense of the underlying Third-Party Claim with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided, that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assume control of the defense, which, notwithstanding the foregoing, shall be borne by the Indemnifying Party). Notwithstanding the foregoing, the Indemnifying Party shall not have the right to assume control of the defense of any Third-Party Claim and settlement shall pay the reasonable fees and out-of-pocket expenses of a single counsel retained by all such claim Indemnified Parties with respect to such Third-Party Claim if: (i) the Third-Party Claim seeks non-monetary, equitable or injunctive relief, (ii) alleges violations of criminal law, or (iii) includes as the named parties in any such Third-Party Claim both an Indemnified Party and an Indemnifying Party, and either a “Notice of Assumption”).
(2) defense is available to an Indemnified Party that is not available to an Indemnifying Party or applicable ethical guidelines provide that, in either case, it would be inappropriate to have the same counsel represent both parties. If the Indemnifying Party delivers a Notice of Assumption within the required notice periodhas assumed such defense as provided in this Section 7.6(b), the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall will not be liable for any legal fees or expenses subsequently incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in connection with the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice defense of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) claim. If the Indemnifying Party does not deliver a Notice assume the defense of Assumption relating to any claim within the required notice periodThird-Party Claim in accordance with this Section 7.6(b), the Indemnified Party shall have the right may continue to defend such claim at the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which cost of the Indemnifying Party is obligated to indemnify under this Agreementand the Indemnifying Party may still participate in, but not control, the defense of such Third-Party Claim at the Indemnifying Party’s sole cost and expense.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(a) for each If either Party (or in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(ccase of Buyer, the Company) for each party in its capacity as a Service Receiverbecomes subject to, in each caseor receives, with respect to Damages claimed the filing, demand or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) notice of, any Action initiated by a third party that may give rise to a claim against the other Party for indemnification under Section 8.2 or Section 8.3, such Party (that third-party claim or assertionin such capacity, a the “ClaimNotifying Party”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) shall promptly notify the other Party from whom indemnification is sought (in such capacity, the “Indemnifying Notified Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice such Action in writing (a “Third Party Claim Notice”) describing, identifying the substance and situation of that Third Party Claim in reasonable detail; provided, that failure to give a Third Party Claim Notice pursuant to this Section 8.6(a) shall not relieve the nature of Indemnifying Party except to the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from extent the Indemnified Party relating is prejudiced by such failure. The Notified Party, at its own cost and expense and upon written notice to the Notifying Party, may, to the extent permissible under Applicable Law, assume the defense of any Claimsuch Action with counsel reasonably satisfactory to the Notifying Party. If the Notified Party elects to defend such Action, but no later than five (5i) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Notifying Party shall notify make available to the Indemnified Notified Party or its Representatives all records and other materials reasonably required by them for use in contesting such Action and shall reasonably cooperate with the Notified Party in the defense thereof at the cost and expense of the Notified Party (provided, that the Indemnifying Notifying Party will assume control of shall use commercially reasonable efforts to minimize such costs and expenses), (ii) the Notifying Party shall be entitled to participate in the defense of any such Action, with its counsel and at its own cost and expense, and (iii) the Notified Party shall not make any admission of liability, agreement, settlement or compromise in respect of such claim any Action without the Notifying Party’s prior written consent (a “Notice of Assumption”which consent shall not be unreasonably withheld, delayed or conditioned).
(2b) If the Indemnifying Notified Party delivers a Notice does not assume the defense of Assumption any such Action within 30 days after receipt of the required notice periodThird Party Claim Notice, the Indemnifying Notifying Party may, but shall not be obligated to, defend against such Action in such manner as it may deem appropriate; provided, that the Notifying Party shall assume control (subject to Indemnified not make any admission of liability, agreement, settlement or compromise in respect of any Action without the Notified Party’s right to participate at its own expense) over prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned). No action taken by the Notifying Party in accordance with such defense and settlement shall relieve the Notified Party of the claim and diligently defend the claimits indemnification obligations herein provided with respect to any Losses resulting therefrom; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Notified Party shall not be liable for any legal fees or expenses incurred Losses to the extent such Losses are increased by the Indemnified Party following Notifying Party’s failure to take commercially reasonable measures to mitigate such Losses, and (ii) the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Notified Party shall not be obligated to indemnify the Indemnified Party liable for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith Losses to the extent it is a claim for which resulting from the Indemnifying Party is obligated to indemnify under this AgreementNotifying Party’s gross negligence or willful misconduct in connection with such defense or settlement.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(i) for each If any third party shall notify any Indemnified Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, writing with respect to Damages claimed or asserted against any matter involving a person claiming indemnification under this Agreement (an “Indemnified Party”) claim by a such third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
(1) The which such Indemnified Party shallbelieves would give rise to a claim for indemnification against the Indemnifying Party under this Section 12, with reasonable promptness after then the Indemnified Party has shall promptly following receipt of notice of a Claim, such claim (Ai) notify the Indemnifying Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim thereof in writing and (Bii) transmit to the Indemnifying Party a written notice (a “Claim Notice”) describing, describing in reasonable detail, detail the nature of the Third Party Claim, and copies a copy of any all papers served with respect to such Claimclaim (if any), and the basis of the Indemnified Party’s request for indemnification under this Agreement. Within fifteen (15) calendar days following receipt of Notwithstanding the foregoing, no failure or delay in providing such notice from shall constitute a waiver or otherwise modify the Indemnified Party’s right to indemnity hereunder, except to the extent that the Indemnifying Party shall have been prejudiced by such failure or delay. If the Indemnifying Party does not notify the Indemnified Party relating to any Claim, but no later than five in writing within thirty (530) calendar days before the date on which any response to a complaint or summons is due if from receipt of such Claim Notice that the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that datedisputes such claim for indemnification under this Agreement, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense be deemed to have accepted and settlement of agreed with such claim (a “Notice of Assumption”)for indemnification under this Agreement.
(2ii) If the Indemnifying Upon receipt of a Claim Notice with respect to a Third Party delivers a Notice of Assumption within the required notice periodClaim, the Indemnifying Party shall assume control (subject to Indemnified Party’s have the right to participate at its own expense) over assume the defense and settlement of any Third Party Claim by, within thirty (30) days of receipt of the claim Claim Notice, notifying the Indemnified Party in writing that the Indemnifying Party elects to assume the defense of such Third Party Claim, and diligently defend upon delivery of such notice by the claim; providedIndemnifying Party, however, that (i) the Indemnifying Party shall keep have the Indemnified Party right to fully apprised as to control and settle the status proceeding; provided, that any such settlement or compromise shall be permitted hereunder only with the written consent of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Notwithstanding the foregoing, the Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense assume the defense of any Third Party Claim if (i) the Third Party Claim relates to participate or arises in connection with any criminal action, (ii) the handling Third Party Claim seeks an injunction or equitable relief against any Indemnified Party, (iii) the Third Party Claim is or would reasonably be expected to result in Losses in excess of the claim. The Indemnifying Party shall not be obligated amounts available for indemnification pursuant to indemnify the Indemnified Party for any amount paid Section 12.5 or payable by such Indemnified Party in the settlement of any claim if (xiv) the Indemnifying Party has delivered not acknowledged that such Third Party Claim is subject to indemnification pursuant to this Section 12. If the Indemnifying Party assumes the defense of a timely Third Party Claim pursuant to this Section 12.3(ii), the Indemnifying Party shall conduct such defense in good faith.
(iii) If requested by the Indemnifying Party, the Indemnified Party shall, at the sole cost and expense of the Indemnifying Party, cooperate reasonably with the Indemnifying Party and its counsel in contesting any Third Party Claim which the Indemnifying Party elects to contest, including in connection with the making of any related counterclaim against the person asserting the Third Party Claim or any cross complaint against any person. The Indemnified Party shall have the right to receive copies of all pleadings, notices and communications with respect to any Third Party Claim, other than any privileged communications between the Indemnifying Party and its counsel, and shall be entitled, at its sole cost and expense, to retain separate co-counsel and participate in, but not control, any defense or settlement of any Third Party Claim assumed by the Indemnifying Party pursuant to Section 12.3(ii).
(iv) In the event of a Third Party Claim for which the Indemnifying Party elects not to assume the defense, fails to make such an election within the thirty (30) days of the Claim Notice or otherwise fails to continue the defense of Assumption the Indemnified Party reasonably and in good faith, the Indemnified Party may, at its option, defend, settle, compromise or pay such amount was agreed to without action or claim at the expense of the Indemnifying Party; provided that any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnifying Party, (y) the Indemnified Party has which consent shall not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, be unreasonably withheld or (z) the time period within which to deliver a Notice of Assumption has not yet expireddelayed.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.
Appears in 1 contract
Third Party Claim. The (1) Within 30 days after the Indemnified Party receives notice of a claim, assertion, legal action, arbitration, investigation, or other matter or proceeding brought by any Person that is not a Party or an Affiliate of a Party and that may result in a Loss for which indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification may be sought under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third-Party Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of shall deliver a Claim, (A) notify the Claim Notice regarding such Third-Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describingParty, in reasonable detail, the nature of the Claim, and including copies of any papers served all pleadings and other information with respect to such Third-Party Claim. Within fifteen (15) calendar days following receipt The failure of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, so notify the Indemnifying Party shall notify not relieve the Indemnifying Party of liability under this Agreement except to the extent that the defense of such Third-Party Claim is materially prejudiced by the failure to give such notice. The Indemnified Party is authorized, prior to the election by the Indemnifying Party to assume the defense of such Third-Party Claim, to file any motion, answer, or other pleading that it shall deem necessary and appropriate to protect its interests or those of the Indemnifying Party and that is not prejudicial to the Indemnifying Party, all costs of which shall be included as Losses in respect of such claim for indemnification.
(2) At the election of the Indemnifying Party, which shall be made within 20 days after receipt of the Claim Notice, the Indemnified Party that shall permit the Indemnifying Party will to assume control of the defense and settlement of such claim Third-Party Claim (to the extent only that such Third-Party Claim relates to a “Notice of Assumption”Loss for which the Indemnifying Party may be liable).
(2) . If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall elects to assume control (subject to Indemnified Party’s right to participate at its own expense) over of the defense and settlement of the claim and diligently defend the claim; providedThird-Party Claim, however, that (i) the Indemnifying Party shall keep any expense incurred by the Indemnified Party fully apprised as to the status thereafter for investigation or defense of the defensematter shall be borne by the Indemnified Party, and (ii) the Indemnified Party shall give all reasonable information and assistance, other than pecuniary, that the Indemnifying Party shall obtain deem necessary and reasonably request to the prior written approval proper defense of such Third-Party Claim. The Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in, but not control, the defense of the Indemnified Third-Party before entering into any settlement of such claim asserting any liability against Claim. If the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing Indemnifying Party elects to defend against such claim or otherwise adversely impacting the Indemnified Party. The Third-Party Claim under this Section 14.5(b), then the Indemnifying Party shall not be liable for any legal fees work diligently to defend or expenses incurred by otherwise resolve the Indemnified Third-Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredClaim.
(3) If the Indemnifying Party does not deliver a Notice elect to assume control of Assumption relating to any claim the defense of the Third-Party Claim within the required notice period20-day period provided in Section 14.5(b), the Indemnified Party will use its commercially reasonable efforts to defend, at the Indemnifying Party’s expense, any claim, assertion, legal action, or other matter to which such other Party’s indemnification under this Article XIV applies until the Indemnifying Party assumes such defense and, if settlement has been offered and the Indemnifying Party has not at such time admitted its obligation to defend and indemnify the Indemnified Party against such Third-Party Claim, the Indemnified Party shall send written notice to the Indemnifying Party of any proposed settlement and the Indemnifying Party shall have the right option for 10 days following receipt of such notice to defend (i) admit in writing its obligation to indemnify the claim Indemnified Party from and against the liability and consent to such settlement, (ii) if liability is so admitted, reject, in its reasonable judgment, the proposed settlement, or (iii) deny liability. Any failure by the Indemnifying Party to respond to such manner as it may deem appropriate. notice shall be deemed to be an election under clause (iii) in the immediately preceding sentence.
(4) The Indemnifying Party shall promptly reimburse not, without the written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed), enter into any judgment, compromise, settlement, or discharge with respect to the Third-Party Claim without the prior written consent of the Indemnified Party unless such judgment, compromise, settlement, or discharge (w) provides for all reasonable costs and expenses incurred the payment by the Indemnifying Party of money as the sole relief for the claimant, (x) involves no finding or admission of any violation of Law or the rights of any Indemnified Party, (y) does not encumber any of the assets of any Indemnified Party (including attorneys’ feesthe Assets) or agree to any restriction or condition that would apply to or materially adversely affect any Indemnified Party or the conduct of any Indemnified Party’s business, and (z) includes, as a condition of any entry of judgment, settlement, compromise, discharge, or other resolution, a complete and unconditional release of each Indemnified Party from any and all liabilities in connection therewith to the extent it is a claim for which the Indemnifying respect of such Third-Party is obligated to indemnify under this AgreementClaim.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Earthstone Energy Inc)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(i) for each Party If the claim or demand set forth in its capacity as the Notice of Claim is a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed claim or demand asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness Company will have 15 calendar days after the Indemnified Party has notice date of a Claim, (A) notify receipt by the Party from whom indemnification is sought Company of the Notice of Claim (the “Indemnifying Party”"Notice Date") of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control Parties in writing of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If election by the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject Company to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Third Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval Claim on behalf of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified PartyParties, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall Company will be entitled to employ counsel at its own expense assume the defense of any such Third Party Claim only if it unconditionally and irrevocably undertakes to indemnify all Indemnified Parties in respect thereof.
(ii) If the Company elects to defend a Third Party Claim on behalf of the Indemnified Parties, the Indemnified Parties will make available to the Company and their agents and representatives all records and other materials in their possession which are reasonably required in the defense of the Third Party Claim and the Company will pay all expenses payable in connection with the defense of the Third Party Claim as they are incurred.
(iii) In no event may the Company settle or compromise any Third Party Claim without the Indemnified Parties' consent, which may not be unreasonably withheld, provided, however, that if a settlement is presented by the Company to the Indemnified Parties for approval and the Indemnified Parties withhold their consent thereto, then any amount by which the final Losses (including reasonable attorneys' fees and charges) resulting from the resolution of the matter exceeds the rejected settlement amount, plus attorneys' fees incurred to such date, will be excluded from the amount covered by the indemnification provided for in this Agreement and shall be borne by the Indemnified Parties.
(iv) If the Company elects to defend a Third Party Claim, the Indemnified Parties will have the right to participate in the handling defense of the claim. The Indemnifying Third Party Claim, at the Indemnified Parties' expense (and without the right to indemnification for such expense under this Agreement), provided, however, that the reasonable fees and expenses of counsel retained by the Indemnified Parties will be at the expense of the Company if (A) the use of the counsel chosen by the Company to represent the Indemnified Parties would present such counsel with a conflict of interest; (B) the parties to such proceeding include both Indemnified parties and the Company and there may be legal defenses available to Indemnified Parties which are different from or additional to those available by the Company; (C) within 10 calendar days after being advised by the Company of the identity of counsel to be retained to represent Indemnified Parties, they shall have objected to the retention of such counsel for valid reasons (which shall be stated in a written notice to the Company), and the Company shall not be obligated have retained different counsel satisfactory to indemnify the Indemnified Party for any amount paid Parties; or payable by such Indemnified Party in the settlement of any claim if (xD) the Indemnifying Party has delivered Company shall have authorized the Indemnified Parties to retain a timely Notice of Assumption and such amount was agreed to without single separate counsel at the written consent expense of the Indemnifying PartyCompany, (y) such authorization to be made by the Indemnified Party has directors who are not provided the Indemnifying Party with notice designees of such claim and a reasonable opportunity to respond thereto, Purchaser or (z) the time period within which to deliver a Notice of Assumption has not yet expiredits Affiliates.
(3v) If the Indemnifying Party Company does not deliver elect to defend a Notice of Assumption relating to any claim within the required notice periodThird Party Claim, or does not defend a Third Party Claim in good faith, the Indemnified Party shall Parties will have the right, in addition to any other right or remedy it may have hereunder, at the sole and exclusive expense of the Company, to defend the claim in such manner as it may deem appropriate. The Indemnifying Third Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this AgreementClaim.
Appears in 1 contract
Sources: Stock Purchase Agreement (Knowledge Capital Investment Group)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each 5.7.1. Where an Indemnified Party has received Notice of any Claim or becomes aware of any matter which may result in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement Claim from any other Person (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
(1) The such Indemnified Party shallshall within 30 (thirty) days of receiving such Notice or becoming aware of any Third Party Claim, with reasonable promptness after the Indemnified Party has give written notice of a Claim, (A) notify the such Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice in reasonable detail in light of the circumstances then known to the Indemnified Party (a “Third Party Claim Notice”) describing, in reasonable detail, ); provided that the nature failure of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if provide such notice shall not relieve the Indemnifying Party has received notice from of its obligations under Clause 5 of this Agreement.
5.7.2. Upon receipt of the Indemnified Third Party relating to any Claim at least five (5) days before that dateNotice, the Indemnifying Party shall notify be obligated to undertake necessary legal actions to defend the Claim or take such action as may be best suitable in the circumstances with counsel reasonably satisfactory to the Indemnified Party, at such Indemnifying Party’s sole expense. Notwithstanding the foregoing, the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim may, (a “Notice of Assumption”).
(2i) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense, retain separate counsel to participate in such defence or any negotiations or settlement thereunder or (ii) over in the event the Indemnifying Party fails to assume such defense within the period set out in Clause 5.7.3 (i) below, the Indemnified Party may assume the defense and settlement of the claim and diligently defend the claim; providedor compromise such Third Party Claim by itself, however, that in which case: (ia) the Indemnifying Party shall keep remain liable for the Indemnified Party fully apprised as to the status of the defense, costs and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement expenses of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Third Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement Claim including all court costs and payment of any claim if interim amounts; (xb) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend contest, settle, compromise or otherwise dispose of such Third Party Claim without the claim in such manner as it may deem appropriateconsent of the Indemnifying Party.
5.7.3. The Indemnifying Party shall promptly reimburse make the indemnity payment in cash (or such other manner agreed in writing between the Indemnified Party for all reasonable costs and Indemnifying Party) to the Indemnified Party upon occurrence of earlier of the following: (i) the Indemnifying Party failing to assume defence within 10 (ten) days from the receipt of the Third Party Claim Notice or such other period within which such defense ought to be assumed to comply with requirements mandated by the third party claimant’s notice (where the third party claimant is a Governmental Authority) or otherwise as required under Applicable Law; or (ii) the Indemnifying Party having assumed the defence of the Third Party Claim, where a payment obligation under a Third Party Claim becomes due and payable including pursuant to a judgement, order by any Governmental Authority or arbitral award, in each case, which is not subject to any stay or other legal suspension or postponement, or a settlement or compromise having been consummated. Provided however that during the process of defense of the Third Party Claim, if the Indemnified Party is required to incur any costs/expenses incurred (including but not limited to pursuant to a notice from any Governmental Authority or interim order passed by a court of law requiring the payment of whole or in part of the Third Party Claim), the Indemnifying Party shall immediately upon receipt of a notice from the Indemnified Party in this regard, remit the said amounts to the Indemnified Party, including attorneys’ feessubject to receipt of documents evidencing such amounts being payable, in connection therewith or otherwise discharge such Third Party Claim (as per the instructions of the Indemnified Party).
5.7.4. The Indemnifying Party agrees that it will not, without the prior written consent of the Indemnified Party: (i) make any payment to the extent it is relevant third party; (ii) consent to the entry of any judgment; (iii) enter into any settlement, with respect to any such Third Party Claim; and/or (iv) make any filings or written submission, whether independently or in response to any request or requirement to make such submission with any other third party including a claim for which Governmental Authority, with respect to the Indemnifying Third Party is obligated to indemnify under this AgreementClaim.
Appears in 1 contract
Sources: Subscription Agreement
Third Party Claim. The indemnification obligation pursuant If the Group Companies or the Purchaser are sued or threatened to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) be sued by a third party (that third-party claim including without limitation any government agencies or assertion, a “Claim”), if the Group Companies or the Purchaser are subject to any audit or examination by any tax authority (hereinafter "Third Party Claim") which may give rise to a Purchaser Claim the following terms Purchaser shall give the Sellers prompt notice (in no event later than twenty (20) Business Days after becoming aware of such Third Party Claim) of such Third Party Claim. Subject to statutory and conditions:
(1) The Indemnified contractual confidentiality obligations, the Purchaser shall ensure that the Sellers shall be provided with all materials, information and assistance relevant in relation to the Third Party shall, with reasonable promptness after Claim in each case reasonably necessary to evaluate the Indemnified Third Party has notice of a Claim, (A) notify be given reasonable opportunity to comment or discuss with Purchaser any measures which Sellers propose to take or to omit in connection with the Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and in particular Sellers shall be given reasonable opportunity to comment on, participate in, and review any reports and all relevant audits or other measures and receive without undue delays copies of all relevant orders (Bescheide) of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claimauthority, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) in cases where the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred above rights are limited by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice periodcontractual confidentiality obligations, the Indemnified Party Sellers shall have the right to appoint a professional advisor unrelated to any of the Sellers or their affiliates who shall be granted access to the confidential information on the basis that the advisor shall only be entitled to inform the Sellers on an abstract basis about the relevant findings in a way that the confidentiality obligation will not be breached. No admission of liability shall be made for or on behalf of Purchaser or the Group Companies and the Third Party Claim shall not be compromised, disposed of or settled without the prior written consent of the Sellers which shall not be unreasonably withheld. Further, the Sellers shall be entitled at their own discretion and costs to take such action (or cause the Purchaser or the Group Companies to take such action) as shall be necessary to defend against such Third Party Claim (including making counter claims or other claims against Third Parties) in the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse name of and on behalf of the Indemnified Party for Purchaser or the Group Companies concerned and the Purchaser will give and cause the Group Companies to give, subject to them being paid all reasonable out-of-pocket costs and expenses incurred by Indemnified Partyexpenses, all such information and assistance as described above including attorneys’ feesaccess to premises and personnel and including the right to examine and copy or photograph any asset, accounts, documents and records for the purpose of defending against any such claim or liability as the Sellers or its professional advisors may reasonably request in connection therewith each case if and to the extent it is a claim for which that actions set forth in this sentence will not adversely affect the Indemnifying Party is obligated to indemnify under this AgreementPurchaser’s or the Group Companies legitimate interests.
Appears in 1 contract
Third Party Claim. (a) With respect to any Third Party Claim, the Sellers shall lead and assume the defence of any such Third Party Claim and shall, at all times and to the maximum extent possible, keep the Purchaser reasonably informed of the status of such Third Party Claim and the proceedings related thereto.
(b) The indemnification obligation Purchaser shall give written notice to the Sellers as to whether or not it wishes to join, (at its own costs), through its own counsels – in addition to the attorneys and consultants appointed by the Sellers or the Company –, the defence of the Third Party Claim and shall also have the right, upon written notice to the Sellers, to request to assume control of the defence (to the maximum extent permitted under applicable Law).
(c) In the event that the Purchaser elects to join the defence of the Third Party Claim pursuant to Section 8.1(bClause 12.3.4(b), the Sellers shall, and shall cause the Company to, duly take into account any reasonable instructions of the Purchaser’s attorneys and consultants in managing any such Third Party Claim, it being understood that the Sellers, after consultation with the Purchaser, shall have the exclusive competence to take the final decision in the event of any conflict between the Sellers (or their counsels) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant Purchaser (or its counsels) about the course of action to Section 8.1(c) for each party in its capacity be taken with reference to the defence of the Third Party Claim, provided, however, that, as a Service Receiver, in each casean exception to the foregoing, with respect to Damages claimed any acknowledgment or asserted against settlement of a person claiming indemnification under this Agreement Third Party Claim, the provisions of Clause 12.3.4(f) concerning such acknowledgment and settlement shall apply.
(an “Indemnified Party”d) by a third party (that third-party claim or assertion, a “Claim”), are subject Should the Purchaser notify in writing to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of Sellers that Claim and (B) transmit it intends to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement defence of such claim (a “Notice the Third Party Claim, then the Purchaser shall have the exclusive competence to take the relevant final decision about the course of Assumption”)action to be taken with reference to the defence of the Third Party Claim.
(e) Should the Purchaser fail to give notice of its intention to join the defence of the Third Party Claim, or to assume control of such defence, or inform the Sellers that it does not wish to join or assume control of the defence, the Sellers:
(i) shall be free to proceed with the defence, provided that the Purchaser shall be granted with the possibility to provide reasonable comments on such defence and the Sellers shall have the right to (1) take into consideration any Purchaser’s reasonable opinions in respect of the relevant remedies and actions and (2) If without prejudice to Clause 12.3.4(f) below, take into account any reasonable request of the Indemnifying Purchaser in relation to the conduct of the legal proceedings and/or settlement negotiations and/or other initiatives in relation to such Third Party delivers Claim;
(ii) shall, and shall cause the Company (where applicable), to diligently and promptly manage any such Third Party Claim, taking without undue delay any reasonable actions, and preparing, also through their counsels, any relevant filings, judicial or administrative acts or other documents, with due care and taking into account the interest of the Company;
(iii) shall regularly (at reasonable intervals) inform the Purchaser about the status of the matter and notify the Purchaser, without undue delay, of all material correspondence or other actions or developments in connection with the Third Party Claim.
(f) In the event that the Purchaser, but not the Sellers, is willing to accept a Notice of Assumption within the required notice periodsettlement, the Indemnifying Party Parties shall assume control (subject promptly meet and consult with each other in good faith with a view to Indemnified Party’s right reaching agreement on the proposed settlement. The Sellers may elect, at their own discretion, to participate at its own expense) over not accept the defense and settlement proposed settlement, in which case the liability of the claim and diligently defend Sellers shall be limited to the claim; provided, however, that higher of: (i) the Indemnifying Loss calculated as if the Third Party shall keep Claim were settled in accordance with the Indemnified Party fully apprised as to the status of the defense, proposed settlement; and (ii) the Indemnifying Loss actually suffered by the Purchaser (or, the Company, as the case may be), taking into account the final determination of the Third Party Claim, in any case without prejudice to the Sellers’ liability limitations in accordance with the applicable provisions of this Agreement. Should the Purchaser notify to assume control of the defence of the Third Party Claim pursuant to Clause 12.3.4(d), the Purchaser shall obtain not acknowledge or settle (nor permit the Company to acknowledge or settle, also in the context of the so-called verifications with acceptance - “accertamenti con adesione” - relating to Tax disputes) a Third Party Claim, without the Sellers’ prior written approval of the Indemnified Party before entering into any settlement of consent, it being understood that such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party consent shall not be liable for unreasonably denied, withheld or delayed. If a firm offer is made to the Purchaser or the Company to settle a Third Party Claim, which the Sellers, but not the Purchaser or any legal fees of the Company, is willing to accept, the Purchaser and/or the Company shall be free not to enter into such settlement and commence or expenses incurred by continue the Indemnified Party following relevant proceeding. In such case, the delivery Sellers’ liability shall in any event be limited to the amount of a Notice of Assumption; provided, however, the proposed settlement (that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in Sellers would have accepted but was) not accepted the handling Purchaser or by any of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying PartyCompany, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith except to the extent it is a claim for such proposed settlement contained material non-monetary obligations which the Indemnifying Party is obligated to indemnify under this AgreementPurchaser or the Company reasonably objected (in which case such limitation of the Sellers’ liability shall not apply).
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant In the event that MM2, an MM2 Shareholder, a Wien Entity or any other party entitled to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Section 12.02 hereof shall choose to assert a claim for Loss or potential Loss based upon a claim by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject to the following terms and conditions:
party seeking indemnification (1"Indemnified Party") The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) shall notify the Party from whom party against which indemnification is sought (the “"Indemnifying Party”") in writing of such claim, promptly following the occurrence of the existence event giving rise thereto, certifying that such a claim has been asserted and the basis therefor which shall be set forth in reasonable detail ("Notification").
(i) The Indemnifying Party shall acknowledge receipt of that Claim the Notification and advise the Indemnified Party in writing twenty (B20) transmit days after receipt thereof as to whether the Indemnifying Party a notice (a “agrees to such Third Party Claim Notice”) describing, in reasonable detail, and whether the nature defense of the Claim, Third Party Claim shall be undertaken by counsel of the choice of and copies at the expense of any papers served with respect to such Claimthe Indemnifying Party. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if If the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that dateso agrees, the Indemnifying Party shall notify be deemed to have accepted any indemnifiable Loss suffered arising from such Third Party Claim, the defense of which has been assumed by the Indemnifying Party. If the Indemnifying Party advises the Indemnified Party that it shall undertake the defense of the Third Party Claim, the Indemnified Party shall deliver all the documents related to the Third Party Claim to the Indemnifying Party or to its counsel, after which the responsibility of the Indemnified Party for the defense of the Third Party Claim shall cease, except that the Indemnified Party shall make available all documents, books and records in its possession related to the Third Party Claim, at no expense to the Indemnifying Party, and shall fully cooperate with counsel for the Indemnifying Party, including providing its personnel who are acquainted with the facts or the documents or books and records related to the Third Party Claim.
(ii) If the Indemnifying Party advises the Indemnified Party that the Indemnifying Party will assume control defense of the defense and settlement Third Party Claim will not be undertaken, either the Indemnified Party shall settle such Third Party Claim (in which case, the amount of such claim (a “Notice settlement and all attorneys' fees attendant to the achievement of Assumption”such settlement shall be deemed included in any computation to determine Loss).
(2) If , or the Indemnified Party shall notify the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend identity of the claim; provided, however, that (i) the Indemnifying Party shall keep counsel for the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing who has been selected to defend against such claim or otherwise adversely impacting the Indemnified PartyThird Party Claim. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by fully cooperate with the Indemnified Party following and its counsel to the delivery extent that the Indemnifying Party has knowledge of a Notice the facts or circumstances relating to the Third Party Claim and the Indemnified Party shall cause its counsel to be available to the Indemnifying Party or its counsel to respond to any inquiries of Assumption; provided, however, the Indemnifying Party concerning the progress of such defense. In the event that the Indemnified Party shall be entitled to employ counsel at its own expense to participate assert a claim for Loss as a result of any loss suffered by the Indemnified Party in settling or defending such Third Party Claim, the handling Indemnified Party shall notify the Indemnifying Party in writing of the such claim. The Indemnifying Party shall not be obligated pay all costs related to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of or the defense within thirty (30) days after a demand for the Loss or any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredcomponent part is made.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed 10.6.1 If an Indemnity Claim by THEC or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) KeySpan involves any Action brought or made by a any third party (that third-party claim or assertion, a “Third Party Claim”), are subject then if THX acknowledges in writing its obligation to the following terms and conditions:
(1) The Indemnified indemnify THEC or KeySpan in respect of such Third Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, THX may elect (Aby written notice to THEC delivered within thirty (30) notify days of notice by THEC to THX pursuant to Section 10.5.1) to assume at its expense the defense of such Third Party from whom indemnification is sought Claim using counsel reasonably acceptable to THEC. If THX does not so elect to assume such defense, then such Third Party Claim shall be defended by THEC or KeySpan in such manner as it reasonably deems appropriate (and the “Indemnifying Party”costs, fees and expenses of THEC for such defense shall constitute Damages), including entering a reasonable settlement thereof in which event the settlement plus THEC’s or KeySpan’s (as applicable) of the existence of that Claim costs, fees and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served expenses with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from thereto shall be the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before Damage; provided that date, the Indemnifying Party THEC shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering not enter into any settlement of such claim asserting Third Party Claim without the prior written consent of THX, which consent shall not be unreasonably withheld, unless THX and its Affiliates have no liability therefor, are not required to admit any liability and will not be bound by any restrictions or limitations on its or their conduct thereafter, and no negative precedent for future claims, actions or litigation against THX and its Affiliates will be established, in which case no consent shall be required. If the Indemnified Partydefense of a Third Party Claim has been assumed by THX, imposing any obligations THX shall cooperate with THEC or restrictions on the Indemnified PartyKeySpan in connection with such defense and shall permit THEC or KeySpan to participate therein; provided, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party that THX shall not be liable to THEC or KeySpan under the provisions hereof for any legal fees or other expenses incurred by THEC or KeySpan (as applicable) in connection with THEC’s or KeySpan’s (as applicable) participation in the Indemnified defense of such Third Party following Claim after THX has elected to assume the delivery defense thereof so long as THX is diligently contesting such Third Party Claim in good faith, unless THEC or KeySpan is advised by outside counsel that an actual or potential conflict of interest exists between THEC or KeySpan (as applicable) and THX or that there are different or additional defenses available to THEC or KeySpan, as the case may be, that are not available to THX, in which case THEC may engage separate counsel (the fees and costs of which shall be borne by THX). THX may not enter into any settlement of a Notice of Assumption; provided, however, that the Indemnified Third Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to Claim without the prior written consent of the Indemnifying PartyTHEC or KeySpan (as applicable), (y) the Indemnified which will not be unreasonably withheld, unless KeySpan and THEC and their respective Affiliates have no liability therefor, are not required to admit any liability and will not be bound by any restrictions or limitations on its or their conduct thereafter, and no negative precedent for future claims, actions or litigation against KeySpan and THEC and their respective Affiliates will be established, in which case no consent shall be required.
10.6.2 If THX’s Indemnity Claim involves a Third Party has not provided the Indemnifying Party with notice Claim, then if THEC or KeySpan acknowledges in writing its obligation to indemnify THX in respect of such claim and a reasonable opportunity Third Party Claim, THEC or KeySpan may elect (by written notice to respond thereto, THX delivered within thirty (30) days of notice by THX to THEC pursuant to Section 10.5.1) to assume at its expense the defense of such Third Party Claim using counsel reasonably acceptable to THX. If THEC or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party KeySpan does not deliver a Notice of Assumption relating so elect to any claim within the required notice periodassume such defense, the Indemnified then such Third Party Claim shall have the right to defend the claim be defended by THX in such manner as it may deem appropriatereasonably deems appropriate (and the costs, fees and expenses of THX for such defense shall constitute Damages), including entering a reasonable settlement thereof in which event the settlement plus THX’s costs, fees and expenses with respect thereto shall be the Damage; provided that THX shall not enter into any settlement of such Third Party Claim without the prior written consent of THEC, which consent shall not be unreasonably withheld, unless THEC, KeySpan and their respective Affiliates have no liability therefor, are not required to admit any liability and will not be bound by any restrictions or limitations on its or their conduct thereafter, and no negative precedent for future claims, actions or litigation against THEC, KeySpan and their respective Affiliates will be established, in which case no consent shall be required. The Indemnifying If the Third Party Claim has been assumed by THEC or KeySpan, THEC or KeySpan (as applicable) shall promptly reimburse cooperate with THX in connection with such defense and shall permit THX to participate therein; provided, that THEC or KeySpan (as applicable) shall not be liable to THX under the Indemnified Party provisions hereof for all reasonable costs and any legal or other expenses incurred by Indemnified PartyTHX in connection with THX’s participation in the defense of such Third Party Claim after THEC or KeySpan (as applicable) has elected to assume the defense thereof so long as THEC or KeySpan (as applicable) is diligently contesting such Third Party Claim in good faith, including attorneys’ feesunless THX is advised by outside counsel that an actual or potential conflict of interest exists between THX and THEC or KeySpan (as applicable) or that there are different or additional defenses available to THX that are not available to THEC or KeySpan (as applicable), in connection therewith which case THX may engage separate counsel (the fees and costs of which shall be borne by THEC or KeySpan). THEC or KeySpan may not enter into any settlement of a Third Party Claim without the prior written consent of THX, which will not be unreasonably withheld, unless THX and its Affiliates have no liability therefor, are not required to the extent it is a claim admit any liability and will not be bound by any restrictions or limitations on its or their conduct thereafter, and no negative precedent for future claims, actions or litigation against THX and its Affiliates will be established, in which the Indemnifying Party is obligated to indemnify under this Agreementcase no consent shall be required.
Appears in 1 contract
Third Party Claim. (a) The indemnification obligation pursuant to Section 8.1(b) for each Indemnifying Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Section 3 shall have the right, but not the obligation, exercisable by a third party (that third-party claim or assertion, a “Claim”), are subject written notice to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice within thirty (30) days of receipt of a Claim, (A) notify the Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice Notice from the Indemnified Party relating with respect thereto, to assume, conduct and control, through counsel of its choosing that is reasonably acceptable to the Indemnified Party, any Third Party Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before provided, however, that date, the Indemnifying Party shall notify not have the right to assume the defense of any Third Party Claims if (i) the Indemnified Party that shall have one or more legal or equitable defenses available to it which are different from or in addition to those available to the Indemnifying Party, and, in the reasonable opinion of the Indemnified Party, counsel for the Indemnifying Party will assume control could not adequately represent the interests of the defense and settlement Indemnified Party because such interests could be in conflict with those of the Indemnifying Party, (ii) such claim litigation is reasonably likely to have a material adverse effect on any other matter beyond the scope or limits of the indemnification obligation of the Indemnifying Party, or (a “Notice of Assumption”).
(2iii) If the Indemnifying Party delivers shall not have assumed the defense of the litigation in a Notice timely fashion (but in any event within thirty (30) days of Assumption within the required notice period, Third Party Claim Notice). If the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; providedany Third Party Claim, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel participate in any Third Party Claim at its own expense to participate in expense, and the handling of the claim. The Indemnifying Party shall not be obligated to indemnify settle such Third Party Claim unless the settlement shall include as an unconditional term thereof the giving by the claimant or the plaintiff of a full and unconditional release of the Indemnified Party, from all liability with respect to the matters that are subject to such Third Party for any amount paid Claim, or payable otherwise shall have been approved by the Indemnified Party, such Indemnified Party approval not to be unreasonably withheld, conditioned or delayed.
(b) The Parties shall cooperate in the settlement defense of any claim if Third Party Claim, with such cooperation to include (xi) the retention and the provision of the Indemnifying Party has delivered records and information that are reasonably relevant to such Third Party Claim, and (ii) reasonable access to employees on a timely Notice mutually convenient basis for providing additional information and explanation of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not any activities performed or material provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredhereunder.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.
Appears in 1 contract
Sources: Manufacturing Technology Transfer Agreement (Sorrento Therapeutics, Inc.)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and If the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service ReceiverClaim is based on court, in each case, with respect to Damages claimed administrative or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) arbitration proceedings instituted by a any third party against the Company or the Purchaser, the defense of the interests of the Purchaser or the Company (that third-party claim or assertion, a “Claim”), are subject to as the case may be) shall be conducted by the Purchaser as stated below. The Purchaser and/or the Company shall freely ensure their defense in accordance with the following terms and conditionsprovisions:
(1i) The Indemnified Party shallUpon the Transferors’ Representative request, with reasonable promptness after a counsel of their choice (whose fees shall be borne by the Indemnified Party has notice of a Claim, Transferors) shall assist the counsel selected by the Purchaser and/or the Company to ensure the follow-up “in real time” (A) notify i.e. allowing him to take part in the Party from whom indemnification is sought (the “Indemnifying Party”discussions and decisions) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”)their interests.
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party Purchaser shall be entitled to employ counsel at its own expense enter into a settlement agreement with respect to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expireddispute concerned.
(3iii) If The Transferors shall be entitled to refuse the Indemnifying Party does not deliver a Notice of Assumption relating settlement agreement provided they undertake to bear the entire amount which would be eventually incumbent upon the Company under the relevant Claim; provided however that the defense against such Claim is conducted by Purchaser in accordance with the terms hereof. In any claim within the required notice periodevent, the Indemnified Purchaser conducting the defense of the interests of the Company (the “Defendant”), it shall comply with the following provisions:
(i) The Defendant shall regularly keep the Party who is not the Defendant (the “Other Party”) informed in due course of the dispute and its evolution and shall act consistently with the Company’s best interests. The Defendant shall diligently provide the Other Party with all related means of proof as well as the documentation received or issued in the context of the proceedings and shall transmit this information in due course so that the Other Party shall have be in a position to make any suggestion as to the right line of action that it deems advisable to defend the claim in such manner as it may deem appropriate. adopt; provided that no attorney-client privileged documents or communications shall be provided hereunder.
(ii) The Indemnifying Party Other Party’s reasonable suggestions shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith be taken into consideration to the extent they are consistent with the Company’s best interests, it is being specified that in the event that the Transferors’ Representative has suggested that a third party claim for which be settled based on the Indemnifying Party is obligated terms of a bona fide settlement proposal from such third party and that the Purchaser has refused to enter into such a settlement agreement by accepting the terms of such bona fide settlement proposal, the Transferors’ obligations to indemnify Purchaser under this AgreementAgreement shall be limited to the amount of the bona fide settlement proposal, provided that the totality of the terms of that settlement proposal must have been reasonable at the time taking into account the Purchaser’s best interests, including, without limitation, its interest in operating as a global company.
(iii) In terms of Taxes, the Transferors shall be informed in writing by the Purchaser or by the Company as soon as practicable of the receipt of any tax audit or tax reassessment notice so that the Transferors shall be in a position to be represented by an attorney during these audits and during any meeting with the representatives of the relevant authorities.
Appears in 1 contract
Sources: Share Purchase and Contribution Agreement (Simulations Plus Inc)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with With respect to Damages claimed any claim, assertion or asserted against Action made or brought by any third Person that could result in a person claiming indemnification under this Agreement Claim (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third-Party Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice Third-Party Claim with counsel of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right choosing that is reasonably satisfactory to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defenseParty, and (ii) the Indemnifying Party all parties shall obtain the prior written approval of the Indemnified Party before entering into any settlement of cooperate in good faith in such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Partydefense. The Indemnifying Party shall have the right, at its own cost and expense, to participate in the defense of any Third-Party Claim with counsel selected by it. Each of the Indemnified Party and Indemnifying Party shall reasonably cooperate with each other in connection with the defense of any Third-Party Claim, including by retaining and providing to the other parties such reasonable and relevant defense records and information to such Third Party Claim and making available employees on a mutually convenient basis for providing additional information and explanation of any material provided hereunder. Notwithstanding anything in this Agreement to the contrary, there shall be no settlement or agreement with respect to any Third-Party Claim without the prior written consent of the Indemnifying Party, such consent not to be liable for unreasonably withheld, conditioned or delayed. The final amount awarded or decided by any legal fees court, arbitrator or other Governmental Authority of the Third Party Claim, and the final settlement amount, in the case of a settlement of the Third Party Claim, together with any fees, costs and expenses incurred by the Indemnified Acquired Companies in respect of the Third Party following Claim, shall be indicative of the delivery of a Notice of Assumption; provided, however, that Losses for which the Indemnified Party shall be entitled to employ counsel at its own expense make a Claim pursuant to participate in the handling of provisions hereof, and the claim. The Indemnifying Party shall not be obligated liable to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption for, and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the be entitled to receive from Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, payment of the aggregate amount of such Losses in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under manner specified in this AgreementSection 8.3.
Appears in 1 contract
Sources: Equity Purchase Agreement (Entravision Communications Corp)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(ba) In the event that a claim is made against an Indemnified Person by a Third Party (“Third Party Claim”) and in respect of which the Indemnified Persons may make a claim for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiverindemnification, in each caseaccordance with the terms of this Agreement, then the Indemnified Persons shall immediately and in any event within a period of 15 (Fifteen) Business Days from the date of receipt of such Third Party Claim, notify the Indemnifying Person of such Third Party Claim in writing (“Third Party Claim Notice”). Such notification shall include all details (including an estimate of the amount) then known to the Indemnified Persons in respect of the Third Party Claim or the events, matters or circumstances that would reasonably be expected to give rise to the Third Party Claim (as applicable) and all documents relating thereto as have been delivered by the Third Party to the Indemnified Person.
b) Upon receipt of the Third Party Claim Notice, the Indemnifying Person shall be entitled to assume defence of such Third Party Claim. Upon assuming the defence of the Third Party Claim as aforesaid, the Indemnifying Person shall be entitled take such action, at its own cost and expense with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertionsuch Third Party Claim, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claimin such manner as it deems fit. Notwithstanding anything contained herein, (A) notify the Indemnifying Person acknowledges and undertakes that it is liable to indemnify the Indemnified Persons in respect of such Third Party from whom indemnification is sought (Claim as per the “Indemnifying Party”) terms hereof and at no point in time, pending such Third Party Claim, should the Indemnified Persons go out of the existence of that Claim pocket, and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, Persons will not enter in reasonable detail, the nature of the Claim, and copies of to any papers served settlement or compromise with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Third Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) without a full release from the Indemnifying relevant Third Party shall keep of all liability whatsoever of the Indemnified Party fully apprised as to the status of the defensePersons, and (ii) the Indemnifying Party shall obtain where such settlement or compromise imposes any non- financial obligation or liability on any Indemnified Persons, without the prior written approval consent in writing of the Indemnified Persons.
c) In the event the Indemnifying Person does not assume the defense of a Third Party before entering into any settlement Claim nor informs the Indemnified Persons of their intention to do so within a period of 20 (twenty) Business Days from the date of receipt of notice of the Third Party Claim Notice, then the Indemnified Persons shall send a Notice (“Reminder Notice”) to the Indemnifying Person referencing this Clause and asking Indemnifying Person whether they propose to assume the conduct of the defence of the Third Party Claim. If the Indemnifying Person does not respond to such Reminder Notice or assume conduct of the defense of such claim asserting any liability against Third Party Claim, within 7 (seven) Business Days of receipt of the Reminder Notice, the Indemnified PartyPerson(s) shall have the right, imposing any obligations or restrictions on but not the Indemnified Partyobligation, ceasing to defend themselves against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Third Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) Claim until the Indemnifying Party has delivered a timely Notice Person assumes such conduct of Assumption and such amount was agreed to without the defence with mutual written consent of the Indemnified Persons and Indemnifying PartyPerson, (y) without waiving any right of indemnity against the Indemnifying Person. If any Governmental Authority passes an order or similar adjudication against the Company, with respect to a Third Party Claim and orders the Indemnified Person(s) to pay the amounts arising from such Third Party has not provided Claim, then the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) Person shall forthwith reimburse the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, amount paid by the Indemnified Person(s) towards such Third Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this AgreementClaim.
Appears in 1 contract
Sources: Share Subscription Agreement
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service ReceiverIf any claim, in each caseaction, with respect to Damages claimed suit or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) proceeding is filed or initiated by a third party against any Party entitled to the benefit of indemnity hereunder (that third-party claim or assertioneach, a “Third Party Claim”), are subject written notice thereof shall be given to the following terms indemnifying party as promptly as practicable (and conditions:
in any event within three (13) The Indemnified Party shall, with reasonable promptness days after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) service of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint citation or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”summons).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party failure of any indemnified party to give timely notice shall not affect rights to indemnification hereunder except to the extent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall acknowledge in writing to the indemnified party that the indemnifying party shall be entitled obligated under the terms of its indemnity hereunder in connection with such Third Party Claim, then the indemnifying party shall be entitled, if it so elects, to take control of the defense and investigation of such Third Party Claim and to employ counsel at and engage attorneys of its own choice to handle and defend the same, such attorneys to be reasonably satisfactory to the indemnified party, at the indemnifying party’s cost, risk and expense (unless (i) the indemnifying party has failed to participate assume the defense of such Third Party Claim or (ii) the named parties to such Third Party Claim include both of the indemnifying party and the indemnified party, and the indemnified party and its counsel determine in good faith that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party and that joint representation would be inappropriate), and to compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld. The indemnified party may withhold such consent if such compromise or settlement would adversely affect the conduct of business or requires less than an unconditional release to be obtained. If (i) the indemnifying party fails to assume the defense of such Third Party Claim within 15 days after receipt of notice thereof pursuant to this Section 11.2, or (ii) the named parties to such Third Party Claim include both the indemnifying party and the indemnified party and the indemnified party and its counsel determine in good faith that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party and that joint representation would be inappropriate, the indemnified party against which such Third Party Claim has been filed or initiated will (upon delivering notice to such effect to the indemnifying party) have the right to participate, at the indemnifying party’s cost and expense, in the handling defense, compromise or settlement of the claim. The Indemnifying such Third Party Claim; provided, however, that such Third Party Claim shall not be obligated to indemnify the Indemnified Party for any amount paid compromised or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to settled without the written consent of both the Indemnifying Partyindemnified and the indemnifying party, which consent shall not be unreasonably withheld. The indemnifying party shall be liable for any settlement of any Third Party Claim effected pursuant to and in accordance with this Section 11.2 and for any final judgment (y) subject to any right of appeal), and the Indemnified Party has not provided indemnifying party agrees to indemnify and hold harmless the Indemnifying Party with notice indemnified party from and against any Losses by reason of such claim and a reasonable opportunity to respond thereto, settlement or (z) judgment. Regardless of whether the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If indemnified party participates in the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice perioddefense, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all indemnifying party will pay reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to with the extent it is a claim defense, compromise or settlement for which the Indemnifying any Third Party is obligated to indemnify Claim under this AgreementSection 11.2.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant 8.3.1 If an Indemnified Party becomes aware of any third party claim, potential claim, matter or event (a “Third Party Claim”) which might lead to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification claim being made under this Agreement (an “Indemnified against the Indemnifying Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has shall procure that notice of a Claim, (A) notify the such Third Party from whom indemnification Claim is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit given as soon as reasonably practicable to the Indemnifying Party a notice and, subject to being fully indemnified (a “on an after tax basis if appropriate in accordance with the principles in Schedule 3, Part 10) to its reasonable satisfaction by the Indemnifying Party against all reasonable out-of-pocket costs and expenses incurred by the Indemnified Party, and otherwise subject at all times to this paragraph 8:
(i) shall not make any admission of liability, agreement or compromise with any person, body or authority nor consent to the entry of any judgement or final order in relation to any such Third Party Claim Notice”except with prior consultation with, and the prior agreement (not to be unreasonably withheld or delayed) describing, in reasonable detailof, the nature of Indemnifying Party;
(ii) shall take such action as the Claim, and copies of any papers served Indemnifying Party may reasonably request after consultation with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to avoid, dispute, resist, appeal, compromise or defend such Third Party Claim or any adjudication in respect of that Third Party Claim, but no later than five ; and
(5iii) calendar days before the date on which any response to a complaint or summons is due if so required by the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party in writing shall notify the Indemnified Party ensure that the Indemnifying Party will assume control is placed in a position to take on or take over the conduct of all proceedings or negotiations of whatever nature arising in connection with the defense Third Party Claim in question and settlement of provide (or, if relevant, procure that there is provided) such claim (a “Notice of Assumption”).
(2) If information and assistance as the Indemnifying Party delivers a Notice may reasonably require in connection with the preparation for and conduct of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, such proceedings or negotiations provided that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status informed of the defense, progress of any proceedings and (ii) the Indemnifying Party shall obtain the prior written approval of consult with the Indemnified Party before entering into prior to taking any settlement of such claim asserting any liability against action which may affect the Indemnified Party, imposing or any obligations business or restrictions on asset of the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. .
8.3.2 The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled at liberty, without reference to employ counsel at the Indemnifying Party and without prejudice to its own expense rights against the Indemnifying Party, to participate in admit, compromise, settle, discharge or otherwise deal with any Third Party Claim:
(i) if the handling Indemnifying Party fails to request the Indemnified Party to take any appropriate action within 7 days of receipt of the claim. The notice given under sub-paragraph 8.3.1 above;
(ii) if no response is received from the Indemnifying Party shall not be obligated within a reasonable period in relation to any continuing dispute, negotiation or correspondence;
(iii) if the Indemnifying Party fails to indemnify the Indemnified Party for as required by paragraph 8.3.1 above; or
(iv) to the extent that failure to do so would vitiate any amount paid or payable by contract of insurance of any Indemnified Party under which such Indemnified Party is able to recover in respect of the settlement relevant Claim.
8.3.3 Without prejudice to paragraph 8.3.1 and 8.3.2 above where, in respect of any claim if (x) Third Party Claim, the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent Liability in respect of the Indemnifying Partyclaim falls to be divided (in whatever proportions) between two or more parties pursuant to this Agreement, the relevant parties shall consult together and co-operate in relation to the conduct of the relevant claim and shall not make any admission of liability, agreement or compromise with any person, body or authority in relation to such claim without prior consultation with and the prior agreement of the others (ysuch agreement not to be unreasonably withheld or delayed, having regard to the relevant proportions of liability to be borne) and shall take such action as the Indemnified other(s) may reasonably request after consultation to avoid, dispute, resist, appeal, compromise or defend such Third Party has not provided the Indemnifying Party with notice Claim or any adjudication in respect of such claim and a reasonable opportunity claim, provided that it shall not be required to respond theretodo anything that would materially damage its interests or result in any legal, professional or (z) the time period within which to deliver a Notice of Assumption has not yet expiredother privilege being waived.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.
Appears in 1 contract
Sources: Consortium and Shareholders’ Agreement (Banco Santander Central Hispano Sa)
Third Party Claim. The indemnification obligation pursuant Parties hereto agree to reasonably cooperate with each other in connection with the defense, negotiation or settlement of any such Third Party Claim. Notwithstanding anything in this Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject 7.05 to the following terms and conditions:
(1) The contrary, neither the Indemnifying Party nor the Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the other Party, settle or compromise any Third Party Claim or permit a default or consent to entry of any judgment unless (i) the claimant provides to such other Party an unqualified release of the Indemnified and Indemnifying Parties from all liability in respect of such Third Party Claim, (ii) such settlement does not involve any injunctive relief binding upon the Indemnified Party or any of its Affiliates, (iii) such settlement does not encumber any of the material assets of any Indemnified Party or impose any restriction or condition that would apply to or materially affect any Indemnified Party or the conduct of any Indemnified Party’s business and (iv) such settlement does not involve any admission of liability or wrongdoing by any Indemnified Party or any of its Affiliates. Notwithstanding the foregoing, if a settlement offer solely for money damages is made by the applicable Third Party claimant, and the Indemnifying Party notifies the Indemnified Party in writing of the Indemnifying Party’s willingness to accept the settlement offer and, subject to the applicable limitations of Section 7.04, pay the amount called for by such offer, and the Indemnified Party declines to accept such offer, the Indemnified Party may continue to contest such Third Party Claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall be limited to the lesser of (x) the amount of the settlement offer that the Indemnified Party declined to accept or (y) the Indemnified Party has not provided the Indemnifying Party with notice aggregate Losses of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right with respect to defend the claim in such manner as it may deem appropriate. The Indemnifying Third Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this AgreementClaim.
Appears in 1 contract
Sources: Sub License, License and Asset Purchase Agreement (Prima BioMed LTD)
Third Party Claim. The indemnification obligation pursuant In the event of a Third-Party Claim against any of the Indemnifiable Parties, the Claim Notice shall be delivered to Section 8.1(bthe representative of the Indemnifying Party within up to five (5) for each Business Days after the Indemnifiable Party in its capacity as a Service Provider and has received the indemnification obligation pursuant Claim or on the date corresponding to Section 8.1(cthe expiration of the first one third (1/3) for each party in its capacity as a Service Receiver, in each case, with respect of the legal timeframe to Damages claimed or asserted against a person claiming indemnification under this Agreement present defense (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “ClaimDefense”), are subject whichever occurs earlier. If the legal timeframe to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification present such Defense is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later shorter than five (5) calendar days before days, the Claim Notice shall be delivered up to the date on which corresponding to the expiration of the first half (1/2) of such legal timeframe. The Claim Notice shall be further followed by a copy of the Third-Party Claim and by any response available documents related thereto. Failure to a complaint or summons is due if deliver the Claim Notice by the Indemnifiable Party in the form and within the periods mentioned above shall not exempt the Indemnifying Party has received notice from any obligations attributable thereto under the terms of this Agreement, unless such failure adversely affects the Defense against the relevant Third-Party Claim and within the limit of such loss.
6.4.1. The Indemnifying Party shall respond to the Claim Notice prior to the elapse of one third (1/3) of the period available to attend conciliation or mediation hearing or to present Defense against such Third-Party Claim, informing whether the Indemnifying Party: (a) disagrees that the Third-Party Claim shall be indemnified by the Indemnifying Party, occasion on which the Parties may file the proceedings to resolve disputes provided in Section 10.13; (b) agrees that possible Loss resulting from the Third-Party Claim shall be indemnified by the Indemnifying Party, occasion on which the Indemnifying Party shall inform about its intention to (i) pay the full amount involved in the Third-Party Claim; (ii) present Defense against the Third-Party Claim; or (iii) refrain from conducting the relevant Third-Party Claim, event in which Buyer and the Companies may conduct the Defense against such Third-Party Claim, including to establish the defense strategy and select attorneys.
6.4.2. Notwithstanding the provisions above and without prejudice to Seller’s obligation to indemnify (except, however, if the sellers of M&A operation previously carried out, involving the Companies, are entitled to conduct such Third-Party Claims, event in which such right shall prevail over this Section), the Third-Party Claims listed below shall always be conducted by Buyer or by the Companies, which may establish the defense strategy and select attorneys to present defense against such Third-Party Claim:
(i) Third-Party Claims with the largest portion of the respective financial exposure not indemnifiable by Seller; and
(ii) Third-Party Claim that (a) involves issues related to the Companies’ clients, intellectual property, data protection or anti-corruption, necessarily involving Loss indemnifiable by Seller with potential payment not exceeding three hundred thousand Reais (R$ 300,000.00) (readjusted by the IPCA from this date) on the date of the filing of the relevant Third-Party Claim, or (b) involves any other issue with Loss indemnifiable by Seller with potential payment not exceeding fifty thousand Reais (R$ 50,000.00) (readjusted by the IPCA from this date) on the date of the filing of the relevant Third-Party Claim. Buyer shall solely be entitled to begin conducting one (1) Third-Party Claim provided in item “a” every period of twelve (12) months and/or two (2) Third-Party Claims provided in item “b” every period of twelve (12) months.
6.4.3. The conduction of a Third-Party Claim by Seller (including for purposes of possible joint conduction) shall solely be possible if Seller expressly acknowledges, in writing, responsibility for the Loss (in whole or in part, in the event of Loss occurred in period prior to the Closing Date and persisted after the Closing Date) that may possibly result from adverse decision related to the respective Third-Party Claim.
6.4.4. The Party that is not conducting the Third-Party Claim may, at its exclusive discretion, retain attorneys or specialists to follow-up the conduction of any Third-Party Claim by the other Party and, in any event, the Party that is not conducting the Third-Party Claim shall be solely responsible for the payment of any expenses and fees resulting from such additional engagement.
6.4.5. With due regard for the provisions of Section 6.4.2, if any Third-Party Claim is filed and includes as its subject matter, claim or cause of action, simultaneously, triggering events related to the period before and after the Closing Date, the conduction of such Third-Party Claim shall constitute responsibility of the Party with greater financial exposure in the Third-Party Claim, and the costs shall be borne by the Parties, on proportional basis. The Party with greater financial exposure in the Third-Party Claim shall select the attorneys responsible for conducting the respective Third-Party Claim compatible with the nature and amount of the Third-Party Claim, and according to past practices of the Companies in relation to the amount of the fees contracted for office with similar reputation and experience.
6.4.6. The Parties agree to grant the powers of attorney and make available to one another the documents and information that may possibly be necessary to conduct the Third-Party Claims. The Parties shall assist one another providing full support reasonably requested for purposes of conducting the Third-Party Claim, including (i) providing direct contact with employees, consultants or service providers (such as accountants, attorneys and auditors) that have information, documents or data that may be useful for the defense against the Third-Party Claim; and (ii) authorizing such accountants, attorneys and auditors, or other employees, consultants or service providers, to provide documents and information and elucidations, in due course, in relation to any issues or requests presented by the other Party that may provide support to such Third-Party Claim.
6.4.7. If, at any time, the Indemnified Party relating fails to obtain any Claim at least five (5) days before that datedebt clearance certificates or certificates of suspended debt/tax liability from any public body as a result of Third-Party Claim, the Indemnifying Party shall notify exert its best efforts, including presenting any guarantees, deposits or assets permitted by the applicable Laws, to obtain the relevant debt clearance certificates or certificates of suspended debt/tax liability, so the Indemnified Party that the Indemnifying Party will assume control of the defense may regularly proceed with its activities and settlement of such claim (a “Notice of Assumption”).
(2) operations. If the Indemnifying Party delivers a Notice fails to obtain the debt clearance certificates or certificates of Assumption suspended debt/tax liability within the required notice periodlegal timeframe from the respective Governmental Authority to issue the applicable certificate, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in take all actions applicable under the handling terms of the claim. The Indemnifying Party applicable Laws to obtain the relevant certificate, and any and all costs related to such actions shall not be obligated deemed Loss subject to indemnify the Indemnified Party for any amount paid or payable indemnification by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) without prejudice to other Losses that shall be likewise indemnified by the Indemnifying Party.
6.4.8. If the Indemnified Party is enrolled with any credit protection bodies, bad payers’ registers or has not provided any credit instruments protested thereagainst as a result of Third-Party Claim, the Indemnifying Party with notice of shall exert its best efforts, including presenting any guarantees, deposits or assets permitted by the applicable Laws, to remove the Indemnified Party from such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) registers. If the Indemnifying Party does not deliver a Notice of Assumption relating fails to any claim regularize the relevant situation within five (5) Business Days from receiving notice from the required notice periodIndemnified Party in that regard, the Indemnified Party shall have be entitled to take all actions applicable under the right terms of the applicable Laws to defend regularize the claim in relevant situation, and any and all costs related to such manner as it may deem appropriate. The actions shall be deemed Loss subject to indemnification by the Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith without prejudice to the extent it is a claim for which other Losses that shall be likewise indemnified by the Indemnifying Party is obligated to indemnify under this AgreementParty.
Appears in 1 contract
Sources: Agreement of Purchase and Sale of Shares (CI&T Inc)
Third Party Claim. The indemnification obligation pursuant (i) In the event that any written claim or demand for which an Indemnifying Party may have Liability to Section 8.1(b) for each any Indemnified Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or hereunder is asserted against a person claiming indemnification under this Agreement (an “or sought to be collected from any Indemnified Party”) Party by a third party (that third-party claim or assertion, a “Third-Party Claim”), are subject to the following terms and conditions:
(1) The such Indemnified Party shallshall promptly, with reasonable promptness after the but in no event more than forty-five (45) days following such Indemnified Party has notice Party’s receipt of a Third-Party Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Designated Indemnifying Party a notice of such Third-Party Claim (a “Claim Notice”); provided that the failure to timely give a Claim Notice shall not relieve the applicable Indemnifying Party of its obligations hereunder, except to the extent that the applicable Indemnifying Party shall have been actually and materially prejudiced by such failure and provided further that to the extent that any default interest or penalty results from or is increased by the Indemnified Party’s failure to give timely notice in accordance with this Section 9.4(a)(i), then such default interest and/or penalty will not be included in indemnifiable Losses by the Indemnifying Party.
(ii) describing, in reasonable detail, In the nature of event that the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from Designated Indemnifying Party notifies the Indemnified Party relating that it elects to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from defend the Indemnified Party relating to any Claim at least five (5) days before that dateagainst a Third-Party Claim, the Indemnifying Party shall notify have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense with counsel selected by the Indemnifying Party (and reasonably satisfactory to the Indemnified Party) and shall have the sole responsibility for the payment of the fees and disbursements of such counsel; provided that, prior to the Indemnifying Party assuming control of such defense, it shall first verify to the Indemnified Party in writing within fifteen (15) days of its receipt of the applicable Claim Notice that the Indemnifying Party will assume control shall be fully responsible (with no reservation of any rights, but subject to all of the defense defenses and settlement of rights under this Article IX) for all Liabilities and obligations relating to such claim (a “Notice of Assumption”).
(2) If the Indemnifying Third-Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party Claim and that it shall assume control (subject provide full indemnification to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as with respect to such Third-Party Claim (the status “Control of Defense Conditions”); and provided, further, that the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable entitled to assume control of such defense if (A) the claim for indemnification relates to or arises in connection with any legal fees criminal proceeding, action, indictment, allegation or expenses incurred investigation; (B) the claim seeks as a form of relief any form of remedy other than monetary damages; (C) upon petition by the Indemnified Party, the Indemnifying Party following failed or is failing to vigorously prosecute or defend such Third-Party Claim; (D) the delivery Indemnified Party reasonably concludes, based on the advice of a Notice of Assumption; provided, howevercounsel, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The and Indemnifying Party shall not be obligated have conflicting interests with respect to indemnify such Third-Party Claim or that the Indemnified Party for has one or more defenses not available to the Indemnifying Party; (E) the Buyer reasonably believes that such Third-Party Claim could have a material impact on the Purchased Company or its affiliates’ business operations; or (F) such Third-Party claim relates to any amount paid material customer of the Buyer, the Purchased Company or payable by such Indemnified Party in the settlement of any claim if (x) their respective Affiliates. Once the Indemnifying Party has delivered made such election to control the defense of a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Third-Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice periodClaim, the Indemnified Party shall have the right to defend the claim participate in (but not control) any such manner as it may deem appropriatedefense and to employ separate counsel of its choosing at such Indemnified Party’s expense. The Indemnifying Party shall promptly reimburse not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise, or admit any Liability with respect to, any Third-Party Claim if the Indemnified Party for is not expressly and unconditionally released from all reasonable costs and expenses incurred by Liability thereunder, or if the terms of such settlement would result in (1) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party, including attorneys’ fees(2) a finding or admission of a violation of Law by the Indemnified Party, in connection therewith or (3) any monetary Liability of the Indemnified Party that will not be paid or reimbursed by the Indemnifying Party. Subject to the extent it is a claim for which following sentence, whether or not the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnified Party shall not admit any Liability with respect to, settle, compromise or discharge such Third-Party Claim without the Designated Indemnifying Party’s prior written consent (not to be unreasonably withheld, conditioned or delayed) unless the Indemnifying Party shall not be subject to any indemnification obligation hereunder. If the Indemnifying Party assumes the defense of a Third-Party Claim and is obligated in good faith contesting such Third-Party Claim and has satisfied and continues to indemnify under this Agreementsatisfy the Control of Defense Conditions, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third-Party Claim that the Indemnifying Party may reasonably recommend and that by its terms (x) solely obligates the Indemnifying Party to pay the full amount of Losses in connection with such Third-Party Claim, and (y) fully releases the Indemnified Party in connection with such Third-Party Claim and does not impose any restriction on the future activity or conduct of the Indemnified Party or any of its Affiliates.
(iii) The Indemnified Party and the Indemnifying Party shall reasonably cooperate with respect to the defense of a Third-Party Claim, including by providing reasonable access, subject to appropriate confidentiality restrictions, during normal business hours and on at least five (5) days’ prior written notice, to each other’s relevant Books and Records and employees. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of Books and Records and information that are reasonably relevant to such Third-Party Claim, and making employees and Representatives available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder. The Indemnified Party and the Indemnifying Party shall use commercially reasonable efforts to avoid production of confidential information (consistent with applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges. The provisions of this
Appears in 1 contract
Sources: Purchase Agreement (SciPlay Corp)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(i) for each Party If the claim or demand set forth in its capacity as the Notice of Claim is a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed claim or demand asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”"THIRD PARTY CLAIM"), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness Company will have 15 calendar days after the Indemnified Party has notice date of a Claim, (A) notify receipt by the Party from whom indemnification is sought Company of the Notice of Claim (the “Indemnifying Party”"NOTICE DATE") of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Parties in writing of the election by the Company to defend the Third Party Claim on behalf of the Indemnified Parties, PROVIDED, HOWEVER, that the Indemnifying Party Company will be entitled to assume control of the defense of any such Third Party Claim only if it unconditionally and settlement of such claim irrevocably undertakes to indemnify all Indemnified Parties in respect thereof (a “Notice of Assumption”subject to any applicable limitations set forth in Section 6.1).
(2ii) If the Indemnifying Company elects to defend a Third Party delivers a Notice Claim on behalf of Assumption within the required notice periodIndemnified Parties, the Indemnifying Indemnified Parties will make available to the Company and their agents and representatives all records and other materials in their possession which are reasonably required in the defense of the Third Party shall assume control Claim, and the Company will pay all expenses payable in connection with the defense of the Third Party Claim as they are incurred (subject to any applicable limitations set forth in Section 6.1).
(iii) In no event may the Company settle or compromise any Third Party Claim without the Indemnified Party’s right Parties' consent, which may not be unreasonably withheld, PROVIDED, HOWEVER, that if a settlement is presented by the Company to participate at its own expensethe Indemnified Parties for approval and the Indemnified Parties withhold their consent thereto, then any amount by which the final Losses (including reasonable attorneys' fees and charges) over resulting from the defense and settlement resolution of the claim and diligently defend matter exceeds the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status sum of the defense, rejected settlement amount plus attorneys' fees incurred to such date will be excluded from the amount covered by the indemnification provided for in this Agreement and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred borne by the Indemnified Parties.
(iv) If the Company elects to defend a Third Party following the delivery of a Notice of Assumption; providedClaim, however, that the Indemnified Party shall be entitled to employ counsel at its own expense Parties will have the right to participate in the handling defense of the claim. The Indemnifying Third Party Claim, at the Indemnified Parties' expense (and without the right to indemnification for such expense under this Agreement), PROVIDED, HOWEVER, that the reasonable fees and expenses of counsel retained by the Indemnified Parties will be at the expense of the Company if (A) the use of the counsel chosen by the Company to represent the Indemnified Parties would present such counsel with a conflict of interest; (B) the parties to such proceeding include both Indemnified Parties and the Company and there may be legal defenses available to Indemnified Parties which are different from or additional to those available to the Company; (C) within 10 calendar days after being advised by the Company of the identity of counsel to be retained to represent Indemnified Parties, they shall have objected to the retention of such counsel for valid reasons (which shall be stated in a written notice to the Company), and the Company shall not be obligated have retained different counsel satisfactory to indemnify the Indemnified Party for any amount paid Parties; or payable by such Indemnified Party in the settlement of any claim if (xD) the Indemnifying Party has delivered Company shall have authorized the Indemnified Parties to retain a timely Notice of Assumption and such amount was agreed to without single separate counsel at the written consent expense of the Indemnifying PartyCompany, (y) such authorization to be made by the Indemnified Party has directors who are not provided the Indemnifying Party with notice designees of such claim and a reasonable opportunity to respond thereto, Purchaser or (z) the time period within which to deliver a Notice of Assumption has not yet expiredits Affiliates.
(3v) If the Indemnifying Party Company does not deliver elect to defend a Notice of Assumption relating to any claim within the required notice periodThird Party Claim, or does not defend a Third Party Claim in good faith, the Indemnified Party shall Parties will have the right, in addition to any other right or remedy it may have hereunder, at the sole and exclusive expense of the Company, to defend the claim in such manner as it may deem appropriate. The Indemnifying Third Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this AgreementClaim.
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Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit agrees to give the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a notice Party to this Agreement (a “Claim NoticeThird Party Claim”) describing, in reasonable detail, respect of which indemnity may be sought under Section 7.1 in accordance with the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claimprocedures set forth in Section 7.2; provided, however, that (i) any delay in delivering any Indemnification Notice shall not affect the indemnification provided hereunder, except to the extent the Indemnifying Party shall keep have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party fully apprised as shall deliver to the status Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim.
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party shall have notified the Indemnifying Party of the defenseexistence of the condition set forth in the preceding sentence, and (ii) the Indemnifying Party shall obtain have sixty (60) days (or such lesser number of days set forth in the prior written approval Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party before entering into any settlement of its election to assume the defense of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified PartyThird Party Claim. The Indemnifying Party shall not be liable for any legal fees or expenses All Losses incurred by the Indemnified Party following prior to any assumption by the delivery Indemnifying Party of the defense of a Notice of Assumption; provided, however, that Third Party Claim shall be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party shall be entitled to employ counsel at its own expense to participate from, against and in the handling respect of the claim. The Indemnifying Party shall not be obligated to indemnify Losses incurred or suffered by the Indemnified Party for any amount paid or payable by to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party in within the settlement of any claim if (x) Defense Notice Period that it elects to defend such Third Party Claim, it shall have to right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has delivered duly assumed the defense of a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Third Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice periodClaim, the Indemnified Party shall have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party, subject to the Indemnifying Party's right to defend control the claim in such manner as it may deem appropriatedefense. The Indemnified Party shall participate in any such defense at its own expense unless (A) the Indemnifying Party shall promptly reimburse and the Indemnified Party for are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue shall have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all reasonable costs and such expenses incurred by the Indemnified Party, including attorneys’ fees, Party in connection therewith with such participation shall be borne by the Indemnifying Party. Each Party shall reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation shall include the retention and, upon the Indemnifying Party's request, the provision to the extent it is a claim for which the Indemnifying Party is obligated of records and information which are reasonably relevant to indemnify under this Agreementsuch Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
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Third Party Claim. The indemnification obligation pursuant (a) Subject to paragraph (b) of this Section 8.1(b) for each Party in its capacity as a Service Provider 7.4, the persons indemnified under this Section Seven shall have the right to conduct and control through counsel of their choosing, any third party claim, action or suit, and the indemnification obligation pursuant persons indemnified may compromise or settle the same; provided that any of the indemnified persons shall give the indemnifying party advance notice of any proposed compromise or settlement and the indemnifying party shall have the right to approve or reject such proposed compromise or settlement. The indemnified person shall permit the indemnifying party to participate in the defense of any such action or suit through counsel chosen by it; provided that the fees and expenses of such counsel shall be borne by the indemnifying party. Subject to paragraph (b) of this Section 8.1(c) for each party in its capacity as a Service Receiver7.4, in each case, any compromise or settlement with respect to Damages a claim for money damages effected after the indemnifying party by notice or settlement shall discharge the indemnifying party from liability with respect to the subject matter thereof, and no amount in respect thereof shall be claimed as Loss or asserted against a person claiming indemnification Expense under this Agreement Section Seven.
(an “Indemnified Party”b) by a third If the remedy sought in any action or suit referred to in paragraph (a) of this Section 7.4 is solely money damages and will have no continuing effect on the business of any indemnified person, the indemnifying party (shall have 15 business days after receipt of the notice referred to in the last sentence of Section 7.3 to notify the indemnified persons that it elects to conduct and control such action or suit. If the indemnifying party does not give the foregoing notice, the indemnified persons shall have the right to defend, contest, settle or compromise such action or suit in the exercise of their exclusive discretion, and the indemnifying party shall, upon request from any of the indemnified persons, promptly pay to such indemnified persons in accordance with the other terms of this Section Seven the amount of any Loss and all related Expenses resulting from such third-party claim or assertionclaim. If the indemnifying party gives the foregoing notice, a “Claim”)the indemnifying party shall have the right to undertake, are subject to conduct and control, through counsel of its own choosing and at the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) sole expense of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detailindemnifying party, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense conduct and settlement of such claim (a “Notice of Assumption”).
(2) If action or suit, and the Indemnifying Party delivers a Notice of Assumption within indemnified persons shall cooperate with the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claimindemnifying party in connection therewith; provided, however, provided that (i) the Indemnifying Party indemnifying party shall keep the Indemnified Party fully apprised as not thereby permit to the status exist any lien, encumbrance or other adverse charge upon any asset of the defense, and any indemnified person; (ii) the Indemnifying Party indemnifying party shall obtain permit the prior written approval of indemnified persons to participate in such conduct or settlement through counsel chosen by the Indemnified Party before entering into any settlement indemnified persons, but the fees and expenses of such claim asserting counsel shall be borne by the indemnified persons except as provided in clause (iii) below; and (iii) the indemnifying party shall agree promptly to reimburse to the extent required under this Section Seven the indemnified persons for the full amount of any liability against the Indemnified Party, imposing any obligations Loss resulting from such action or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses suit and all related Expenses incurred by the Indemnified Party following indemnified persons, except fees and expenses of counsel for the delivery of a Notice of Assumption; provided, however, that indemnified persons incurred after the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling assumption of the claimconduct and control of such action or suit by the indemnifying party. The Indemnifying Party So long as the indemnifying party is contesting any such action or suit in good faith, the indemnified persons shall not be obligated to indemnify pay or settle any such action or suit. Notwithstanding the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice periodforegoing, the Indemnified Party indemnified persons shall have the right to defend the claim pay or settle any such action or suit; provided that in such manner event the indemnified persons shall waive any right to indemnity therefore by the indemnifying party, and no amount in respect thereof shall be claimed as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify Loss or Expense under this AgreementSection Seven.
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Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and Promptly after receipt by the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service ReceiverBuyer ----------------- or the Seller of notification of the assertion, in each caseor possible assertion, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served claim, action, suit, proceeding or demand with respect to which indemnification shall or may be claimed by the Buyer or the Seller pursuant to this Section 6 (the "THIRD PARTY CLAIM") (such Claim. Within fifteen recipient being referred to hereinafter as the "INDEMNITEE") the Indemnitee shall give written notice describing the Third Party Claim in reasonable detail (15an "INDEMNITY NOTICE") calendar days following receipt of notice from to the Indemnified Party relating to any Claim, but no later than five other party (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that dateherein, the Indemnifying Party shall notify "INDEMNITOR"). Failure by the Indemnified Party that Indemnitee to send the Indemnifying Party will assume control of the defense and settlement of such claim (a “Indemnity Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for release the Indemnitor from its
1. Neither the Indemnitor nor the Indemnitee shall adjust, compromise or settle any legal fees such claim, action, suit, proceeding or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to demand without the written consent of the Indemnifying Partyother, which consent shall not be unreasonably withheld. As to any Third Party Claim the defense of which has been assumed by the Indemnitor, (yi) the Indemnified Party has not provided Indemnitee shall cooperate fully in such defense as and to the Indemnifying Party with notice extent reasonably requested by the Indemnitor (such cooperation shall include the retention and, upon the Indemnitor's request, the provision to the Indemnitor of records and information that are reasonably relevant to such claim or demand and making employees available on a reasonable opportunity mutually convenient basis to respond thereto, or provide additional information and explanation of any material provided hereunder) and (zii) the time period within which Indemnitor shall not, subsequent to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to such assumption, be liable for any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and legal expenses incurred by Indemnified Partythe Indemnitee. In the event of any claim under this Section 6 for indemnification (whether or not in connection with a Third Party Claim), including attorneys’ feesthe Indemnitee shall promptly advise the Indemnitor in writing, in connection therewith reasonable detail, of the amount and circumstances surrounding said claim (which notice shall also be deemed to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreementbe an Indemnity Notice).
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Sources: General Partnership Interest Purchase Agreement (Pratt Hotel Corp /De/)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each If any legal proceeding or Third Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed Claim shall be instituted or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party entitled to indemnification hereunder (that third-party claim or assertion, a the “ClaimIndemnitee”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) Indemnitee shall notify the Party from whom indemnification is sought party obligated to indemnify the Indemnitee (the “Indemnifying PartyIndemnitor”) in writing of said Third Party Claim. The failure of the existence of that Indemnitee to give reasonably prompt notice thereof Claim and (B) transmit shall not release, waive or otherwise affect Indemnitor’s obligations with respect thereto except to the Indemnifying extent that the Indemnitor is prejudiced as a result of such failure. Indemnitor shall have the right, at its expense, to be represented by counsel of its choice, and to defend against, negotiate, settle or otherwise deal with any Third Party a notice (a “Claim Notice”) describingClaim. If Indemnitee elects to defend against, in reasonable detailnegotiate, the nature of the settle or otherwise deal with any Third Party Claim, it shall do so at its own expense and shall within 30 days notify Indemnitor whether or not it shall do so. If Indemnitor elects not to defend against, negotiate, settle or otherwise deal with any Third Party Claim, Indemnitee may defend against, negotiate, settle or otherwise deal with such Third Party Claim, and copies Indemnitor shall promptly, and in any event within 20 days after demand therefor, reimburse the Indemnitee for the reasonable costs and expenses of such defense, including attorneys’ fees and other Losses incurred by Indemnitee in connection therewith. If Indemnitor shall assume the defense of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Third Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that dateIndemnitee may participate, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over , in the defense and settlement of the claim and diligently defend the claimsuch Third Party Claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party Indemnitee shall be entitled to employ participate in any such defense with separate counsel at its own the expense to participate of Indemnitor if, (i) so requested by Indemnitor or (ii) in the handling reasonable mutual opinion of counsel to Indemnitee and Indemnitor, a conflict or potential conflict exists between the claimIndemnitee and the Indemnitor that would make such separate representation advisable. The Indemnifying Party shall not be obligated Parties hereto agree to indemnify cooperate fully with each other in connection with the Indemnified Party for any amount paid defense, negotiation or payable by such Indemnified Party in the settlement of any claim if (x) such Third Party Claim, and the Indemnifying Party has delivered a timely Notice assuming the defense of Assumption any Third Party Claim shall keep the other Party reasonably informed at all times of the progress and such amount was agreed development of its defense of and compromise efforts with respect thereto shall furnish the other Party with copies of all relevant pleadings, correspondence and other documents. Notwithstanding anything herein to the contrary, neither Indemnitor nor Indemnitee shall, without the written consent of the Indemnifying Partyother, settle or compromise any Third Party Claim or permit a default or consent to entry of any judgment unless (yi) the Indemnified claimant and such Party has not provided provide to the Indemnifying other Party with notice an unqualified release from all liability in respect of such claim the Third Party Claim and a reasonable opportunity to respond thereto(ii) the settlement, compromise, or (z) judgment involves only the time period within which to deliver a Notice payment of Assumption has not yet expired.
(3) If money damages by the Indemnifying Party Indemnitor and does not deliver a Notice impose an injunction or other equitable relief on the Indemnitee or impose any restrictions on the operation of Assumption relating to any claim within the required notice periodbusiness of the Company, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this AgreementPurchaser or its Affiliates.
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Third Party Claim. The indemnification obligation pursuant In the event that the Principal Shareholders, NUBI or any other party entitled to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Section 11.02 hereof shall choose to assert a claim for Loss or potential Loss based upon a claim by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject to the following terms and conditions:
party seeking indemnification (1"Indemnified Party") The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) shall notify the Party from whom party against which indemnification is sought (the “"Indemnifying Party”") in writing of such claim, promptly following the occurrence of the existence event giving rise thereto, certifying that such a claim has been asserted and the basis therefor which shall be set forth in reasonable detail ("Notification").
(i) The Indemnifying Party shall acknowledge receipt of that Claim the Notification and advise the Indemnified Party in writing twenty (B20) transmit days after receipt thereof as to whether the Indemnifying Party a notice (a “agrees to such Third Party Claim Notice”) describing, in reasonable detail, and whether the nature defense of the Claim, Third Party Claim shall be undertaken by counsel of the choice of and copies at the expense of any papers served with respect to such Claimthe Indemnifying Party. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if If the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that dateso agrees, the Indemnifying Party shall notify be deemed to have accepted any indemnifiable Loss suffered arising from such Third Party Claim, the defense of which has been assumed by the Indemnifying Party. If the Indemnifying Party advises the Indemnified Party that it shall undertake the defense of the Third Party Claim, the Indemnified Party shall deliver all the documents related to the Third Party Claim to the Indemnifying Party or to its counsel, after which the responsibility of the Indemnified Party for the defense of the Third Party Claim shall cease, except that the Indemnified Party shall make available all documents, books and records in its possession related to the Third Party Claim, at no expense to the Indemnifying Party, and shall fully cooperate with counsel for the Indemnifying Party, including providing its personnel who are acquainted with the facts or the documents or books and records related to the Third Party Claim.
(ii) If the Indemnifying Party advises the Indemnified Party that the Indemnifying Party will assume control defense of the defense and settlement Third Party Claim will not be undertaken, either the Indemnified Party shall settle such Third Party Claim (in which case, the amount of such claim (a “Notice settlement and all attorneys' fees attendant to the achievement of Assumption”such settlement shall be deemed included in any computation to determine Loss).
(2) If , or the Indemnified Party shall notify the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend identity of the claim; provided, however, that (i) the Indemnifying Party shall keep counsel for the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing who has been selected to defend against such claim or otherwise adversely impacting the Indemnified PartyThird Party Claim. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by fully cooperate with the Indemnified Party following and its counsel to the delivery extent that the Indemnifying Party has knowledge of a Notice the facts or circumstances relating to the Third Party Claim and the Indemnified Party shall cause its counsel to be available to the Indemnifying Party or its counsel to respond to any inquiries of Assumption; provided, however, the Indemnifying Party concerning the progress of such defense. In the event that the Indemnified Party shall be entitled to employ counsel at its own expense to participate assert a claim for Loss as a result of any loss suffered by the Indemnified Party in settling or defending such Third Party Claim, the handling Indemnified Party shall notify the Indemnifying Party in writing of the such claim. The Indemnifying Party shall not be obligated pay all costs related to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of or the defense within thirty (30) days after a demand for the Loss or any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredcomponent part is made.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.
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Third Party Claim. The indemnification obligation Upon receipt of notice of a claim for indemnity from an Indemnified Party pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”8.01(d), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify have the right to assume the defense and control any Third Party Claim, but shall allow the Indemnified Party that the Indemnifying Party will assume control of a reasonable opportunity to participate in the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Third Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate Claim with its own counsel and at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, provided that if (i) the Indemnifying Party shall keep and the Indemnified Party fully apprised as are both named parties to the status proceedings and, in the reasonable opinion of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against counsel to the Indemnified Party, imposing any obligations representation of both parties by the same counsel would be inappropriate due to actual or restrictions potential differing interests between them, or (ii) in the reasonable opinion of counsel to the Indemnified Party, such Third Party Claim involves the potential imposition of criminal liability on the Indemnified Party, ceasing then, in each such case, the applicable Indemnified Parties shall be entitled to defend against participate in any such claim or otherwise adversely impacting defense with one separate counsel at the Indemnified reasonable expense of the Indemnifying Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by select counsel of recognized standing and competence after consultation with the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party and shall be entitled to employ counsel at its own expense to participate take all reasonably necessary steps in the handling defense or settlement of the claimsuch Third Party Claim. The Indemnifying Party shall not be obligated authorized to indemnify consent to a settlement of, or the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement entry of any claim if (x) judgment arising from, any Third Party Claim, without the consent of any Indemnified Party, provided that the Indemnifying Party has delivered a timely Notice shall
(A) pay or cause to be paid all amounts arising out of Assumption and such amount was agreed to without settlement or judgment concurrently with the written consent effectiveness of such settlement, (B) not encumber any of the Indemnifying material assets of any Indemnified Party or agree to any restriction or condition that would apply to or materially adversely affect any Indemnified Party or the conduct of any Indemnified Party’s business, (yC) the obtain, as a condition of any settlement or other resolution, a complete release of any Indemnified Party has not provided potentially affected by such Third Party Claim, and (D) ensure that the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party settlement does not deliver a Notice include any admission of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreementwrongdoing or misconduct.
Appears in 1 contract
Sources: Asset Purchase Agreement
Third Party Claim. The indemnification obligation pursuant (i) In the event that any written claim or demand for which an Indemnifying Party may have Liability to Section 8.1(b) for each any Indemnified Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or hereunder is asserted against a person claiming indemnification under this Agreement (an “or sought to be collected from any Indemnified Party”) Party by a third party (that third-party claim or assertion, a “Third-Party Claim”), are subject to the following terms and conditions:
(1) The such Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) shall promptly notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto, a notice reasonably detailed explanation of the events giving rise to such Third-Party Claim and any other material details pertaining thereto (a “Claim Notice”) describing); provided that the failure to timely give a Claim Notice shall not relieve the Indemnifying Party of its obligations hereunder, in reasonable detailexcept to the extent that the Indemnifying Party shall have been actually and materially prejudiced by such failure. Thereafter, the nature of Indemnified Party shall deliver to the ClaimIndemnifying Party, and promptly following the Indemnified Party’s receipt thereof, copies of any papers served with respect to such Claim. Within fifteen all notices and documents (15including court papers) calendar days following receipt of notice from received by the Indemnified Party relating to any the Third-Party Claim, but no later than five .
(5ii) calendar days before In the date on which any response to a complaint or summons is due if event that the Indemnifying Party has received notice from notifies the Indemnified Party relating that it elects to any Claim at least five (5) days before that datedefend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall notify have the right to defend the Indemnified Party that by appropriate proceedings and shall have the Indemnifying Party will assume sole power to direct and control of the such defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) Once the Indemnifying Party has delivered a timely Notice of Assumption and made such amount was agreed election to without control the written consent defense of the Indemnifying Party, (y) the Indemnified Third-Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice periodClaim, the Indemnified Party shall have the right to defend the claim participate in (but not control) any such manner as it may deem appropriatedefense and to employ separate counsel of its choosing at such Indemnified Party’s expense. The Indemnifying Party shall promptly reimburse not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim if the terms of such settlement would result in (A) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party, or (B) a finding or admission of a violation of Law by the Indemnified Party for all reasonable costs that would have a material and expenses incurred by adverse effect on the Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which . Whether or not the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnified Party shall not admit any Liability with respect to, settle, compromise or discharge, such Third-Party Claim without the Indemnifying Party’s prior written consent. If the Indemnifying Party assumes the defense of a Third-Party Claim and is obligated in good faith contesting such Third-Party Claim, the Indemnified Party shall agree to indemnify under this Agreementany settlement, compromise or discharge of a Third-Party Claim that the Indemnifying Party may reasonably recommend and that by its terms (x) obligates the Indemnifying Party to pay the full amount of Losses in connection with such Third-Party Claim or (y) releases the Indemnified Party in connection with such Third-Party Claim.
(iii) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing reasonable access to each other’s relevant Books and Records and applicable employees. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of Books and Records and information that are reasonably relevant to such Third-Party Claim, and making applicable employees and Representatives available on a mutually convenient basis during normal business hours. The Indemnified Party and the Indemnifying Party shall use commercially reasonable efforts to avoid production of confidential information (consistent with applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
Appears in 1 contract
Sources: Transaction Agreement (Griffon Corp)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(i) for each Party If the claim or demand set forth in its capacity as the Notice of Claim is a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed claim or demand asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness Company will have 15 calendar days after the Indemnified Party has notice date of a Claim, (A) notify receipt by the Party from whom indemnification is sought Company of the Notice of Claim (the “Indemnifying Party”"Notice Date") of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control Parties in writing of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If election by the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject Company to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Third Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval Claim on behalf of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified PartyParties, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall Company will be entitled to employ counsel at its own expense assume the defense of any such Third Party Claim only if it unconditionally and irrevocably undertakes to indemnify all Indemnified Parties in respect thereof (subject to any applicable limitations set forth in Section 6.1).
(ii) If the Company elects to defend a Third Party Claim on behalf of the Indemnified Parties, the Indemnified Parties will make available to the Company and their agents and representatives all records and other materials in their possession which are reasonably required in the defense of the Third Party Claim, and the Company will pay all expenses payable in connection with the defense of the Third Party Claim as they are incurred (subject to any applicable limitations set forth in Section 6.1).
(iii) In no event may the Company settle or compromise any Third Party Claim without the Indemnified Parties' consent, which may not be unreasonably withheld, provided, however, that if a settlement is presented by the Company to the Indemnified Parties for approval and the Indemnified Parties withhold their consent thereto, then any amount by which the final Losses (including reasonable attorneys' fees and charges) resulting from the resolution of the matter exceeds the sum of the rejected settlement amount plus attorneys' fees incurred to such date will be excluded from the amount covered by the indemnification provided for in this Agreement and shall be borne by the Indemnified Parties.
(iv) If the Company elects to defend a Third Party Claim, the Indemnified Parties will have the right to participate in the handling defense of the claim. The Indemnifying Third Party Claim, at the Indemnified Parties' expense (and without the right to indemnification for such expense under this Agreement), provided, however, that the reasonable fees and expenses of counsel retained by the Indemnified Parties will be at the expense of the Company if (A) the use of the counsel chosen by the Company to represent the Indemnified Parties would present such counsel with a conflict of interest; (B) the parties to such proceeding include both Indemnified Parties and the Company and there may be legal defenses available to Indemnified Parties which are different from or additional to those available by the Company; (C) within 10 calendar days after being advised by the Company of the identity of counsel to be retained to represent Indemnified Parties, they shall have objected to the retention of such counsel for valid reasons (which shall be stated in a written notice to the Company), and the Company shall not be obligated have retained different counsel satisfactory to indemnify the Indemnified Party for any amount paid Parties; or payable by such Indemnified Party in the settlement of any claim if (xD) the Indemnifying Party has delivered Company shall have authorized the Indemnified Parties to retain a timely Notice of Assumption and such amount was agreed to without single separate counsel at the written consent expense of the Indemnifying PartyCompany, (y) such authorization to be made by the Indemnified Party has directors who are not provided the Indemnifying Party with notice designees of such claim and a reasonable opportunity to respond thereto, Purchaser or (z) the time period within which to deliver a Notice of Assumption has not yet expiredits Affiliates.
(3v) If the Indemnifying Party Company does not deliver elect to defend a Notice of Assumption relating to any claim within the required notice periodThird Party Claim, or does not defend a Third Party Claim in good faith, the Indemnified Party shall Parties will have the right, in addition to any other right or remedy it may have hereunder, at the sole and exclusive expense of the Company, to defend the claim in such manner as it may deem appropriate. The Indemnifying Third Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this AgreementClaim.
Appears in 1 contract
Sources: Investment Agreement (Omega Healthcare Investors Inc)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed 8.5.1 If any legal proceeding shall be instituted or any claim or demand shall be asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after against the Indemnified Party has notice of (each a "Third Party Claim"), (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, then the Indemnifying Party shall notify have the right, after receipt of the Indemnified Party's notice under Section 8.4 hereof and upon giving notice to the Indemnified Party that within 30 calendar days of such receipt, to defend the Third Party Claim at its own cost and expense with counsel of its own selection, provided that:
8.5.1.1 the Indemnified Party shall at all times have the right to fully participate in the defense at its own expense;
8.5.1.2 the Third Party Claim seeks only monetary damages and does not seek any injunctive or other relief against the Indemnified Party;
8.5.1.3 the Indemnifying Party will assume control unconditionally acknowledges in writing its obligation to indemnify and hold the Indemnified Party harmless with respect to the Third Party Claim; and
8.5.1.4 legal counsel chosen by the Indemnifying Party is satisfactory to the Indemnified Party, acting reasonably.
8.5.2 Amounts payable by the Indemnifying Party pursuant to a Third Party Claim shall be paid in accordance with the terms of the defense settlement or, the judgment, as applicable, but in any event prior to the expiry of any delay for a judgment to become executory.
8.5.3 Neither party shall be permitted to compromise and settle or to cause a compromise and settlement of such claim (any Third Party Claim, without the prior written consent of the other party, unless:
8.5.3.1 the terms of the compromise and settlement do not require the other party to admit any wrongdoing or take or refrain from taking any action; and
8.5.3.2 both parties receive, as part of the compromise and settlement, a “Notice of Assumption”)legally binding and enforceable unconditional satisfaction or release, which is in form and substance satisfactory to both parties, acting reasonably, from any and all obligations or liabilities it may have with respect to the Third Party Claim.
(2) 8.5.4 If the Indemnifying Party delivers fails within 30 calendar days from receipt of the notice of a Notice Third Party Claim to give notice of Assumption within its intention to defend the required notice periodThird Party Claim in accordance with Section 8.5, then the Indemnifying Party shall assume control (subject be deemed to Indemnified Party’s have waived its right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Third Party shall keep the Indemnified Party fully apprised as to the status of the defense, Claim and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right (but not the obligation) to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith undertake or to the extent it is a claim for which cause the Indemnifying Party to undertake the defense of the Third Party Claim and compromise and settle the Third Party Claim on behalf, for the account and at the risk and expense of the Indemnifying Party.
8.5.5 For the avoidance of doubt, a Third Party Claim is obligated a Claim, and thus subject to indemnify under this Agreementthe limitations set forth in Section 8.1.
Appears in 1 contract
Third Party Claim. The indemnification Under this Agreement, the obligation pursuant of Seller to Section 8.1(bindemnify (the "Indemnifying Party") for each Party in its capacity as a Service Provider and the entitlement to indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement of Buyer (an “the "Indemnified Party”") by in respect of, arising out of or involving a third party (that third-party claim or assertion, a “Claim”), are demand made by third parties (the "Third Party Claims") will be subject to the following terms and conditions:
(1i) Upon receipt of written notice of any Third Party Claim asserted against, resulting to, imposed upon or incurred by an Indemnified Party, such Indemnified Party will undertake the defense thereof, by counsel of its own choosing, which counsel shall be reasonably satisfactory to the Indemnifying Party, provided that (A) the Indemnified Party agrees to consult with the Indemnifying Party in a timely manner on all important strategic matters relating to any such Third Party Claim, (B) the Indemnified Party shall not settle any Third Party Claim without the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld, taking into account the balance of interests between the legal merits of the claim and any bona-fide commercial interest of the Indemnified Party to agree to a prompt settlement, and (C) that the Indemnified Party shall have a good faith duty to mitigate any loss in a commercially reason able manner, including taking all commercially reasonable steps to recover amounts due to the Indemnified Party as a result of 39 41 the relevant Third Party Claim. The Indemnifying Party shall pay the reason able legal fees and legal expenses incurred by the Indemnified Party in the defense of such claims.
(ii) The Indemnifying Party will provide the Indemnified Party against whom a Third Party Claim is asserted with access to all records and documents relating to any Third Party Claim. The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to will provide the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature with access to all records and documents of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Third Party Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party 14.1. Upon receipt of an Indemnity Notice in its capacity as respect of a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed pending or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) threatened claim or demand by a third party (including, for the avoidance of doubt, governmental authorities) that third-party has given or could reasonably give rise to a Recovery Claim (such claim or assertion, demand being a “Third Party Claim”), are subject the Vendor may, by notice to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness Purchaser delivered within 20 Business Days after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) receipt of the existence of that Claim Indemnity Notice, assume the defence and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense such Third Party Claim with its own counsel and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over . The Vendor shall allow the defense Purchaser a reasonable opportunity to participate in the defence of such Third Party Claim at its own cost and settlement expense, for the avoidance of doubt, without controlling it.
14.2. If the Vendor elects to assume the defence and control of such Third Party Claim, the Vendor may, without the prior written consent of the claim Purchaser (which shall not be unreasonably withheld, conditioned or delayed), consent to a settlement, compromise or discharge of any Third Party Claim, if such settlement, compromise or discharge is on exclusively monetary terms and diligently defend the claim; providedVendor shall (i) pay or cause to be paid all amounts arising out of such settlement, howevercompromise or discharge concurrently with its effectiveness and (ii) obtain, as a condition of any settlement, compromise or discharge, a complete and unconditional release of the Purchaser and its Affiliates from any and all liability in respect of such Third Party Claim and without any payment by the Purchaser and its Affiliates.
14.3. The Purchaser shall, and shall cause its Affiliates to, cooperate with the Vendor and its Representatives in contesting any Third Party Claim, including in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than against the Purchaser or any of its Affiliates), subject to reimbursements for any costs or expenses reasonably incurred by the Purchaser or any of its Affiliates in connection therewith.
14.4. Notwithstanding anything to the contrary contained herein, the Vendor shall not have the right to control the defence of a Third Party Claim to the extent that (i) it involves any customer under a Contract which has already been transferred to a Purchaser Designee as contemplated by Clause 7 (i.e. and therefore not qualifying as a “Contingent Transferred Contract” or “Contingent Shared Contract”) and (ii) such Third Party Claim could reasonably be expected to materially impair a Purchaser’s Designee relationship with such customer.
14.5. If the Vendor does not elect to control such Third Party Claim or Clause 14.4 is applicable, the Purchaser shall control such Third Party Claim provided that (i) the Indemnifying Party Purchaser shall keep the Indemnified Party fully apprised as Vendor reasonably informed with respect to the status of the defensesuch defence, and (ii) the Indemnifying Purchaser shall consult with the Vendor before taking any significant action in connection with such Third Party shall obtain Claim, and (iii) the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified PartyVendor may, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to cost and expense, participate in (but, for the handling avoidance of doubt, not control) the claimdefence of such Third Party Claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to Purchaser may, without the prior written consent of the Indemnifying PartyVendor (which shall not be unreasonably withheld, (y) conditioned or delayed), consent to a settlement, compromise or discharge of any Third Party Claim, if such settlement, compromise or discharge is on the Indemnified Party has not provided condition of a complete and unconditional release of the Indemnifying Party with notice Vendor and its Affiliates from any and all liability in respect of such claim Third Party Claim and a reasonable opportunity to respond thereto, without any payment by the Vendor and its Affiliates or (z) the time period within which to deliver a Notice of Assumption has not yet expiredPurchaser and its Affiliates.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating 14.6. With respect to any claim within proposed settlement, compromises or discharges which cannot be entered into without the required notice periodprior written consent of the relevant other Party pursuant to the provisions of Clause 14.2 and Clause 14.5, the Indemnified Party Vendor and the Purchaser shall have the right to defend the claim discuss any such proposals in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs good faith and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith act reasonably with respect to the extent it is a claim for which the Indemnifying Party is obligated decision on whether to indemnify under this Agreementconsent to any such proposed settlements, compromises and discharges.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant In the event the facts giving rise to Section 8.1(b) the claim for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Article 7 shall involve any action or threatened claim or demand by a any third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after against the Indemnified Party has (a "Third Party Claim"), within the earlier of, as applicable, ten (10) days after receiving notice of the filing of a Claim, lawsuit or thirty (A30) notify the Party from whom indemnification is sought (the “Indemnifying Party”) days after receiving notice of the existence of that a claim, demand, suit or proceeding (each a "Claim") giving rise to the claim for indemnification, the Indemnified Party shall send written notice of such Claim and (B) transmit to the Indemnifying Party a notice (a “the "Claim Notice”) describing, in reasonable detail, the nature "). The failure of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if give the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, Notice shall not release the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claimfrom liability under this Article 7; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses losses incurred by the Indemnified Party following which would not have been incurred but for the delay in the delivery of a Notice of Assumption; providedof, howeveror the failure to deliver, that the Indemnified Claim Notice. Except as set forth below, the Indemnifying Party shall be entitled to employ counsel defend such Claim in the name of the Indemnified Party at his or its own expense to participate in the handling and through counsel of the claimhis or its own choosing. The Indemnifying Party shall not be obligated to indemnify give the Indemnified Party for any amount paid or payable by such notice in writing within ten (10) days after receiving the Claim Notice from the Indemnified Party in the settlement event the Claim is one involving an instituted suit or proceeding, or otherwise within thirty (30) days, of any claim if (x) his or its intent to do so. If the Indemnifying Party has delivered chooses to defend or prosecute a timely Notice Third Party Claim, all the Indemnified Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of Assumption records and information that are reasonably relevant to such amount was agreed Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent, which consent of shall not be unreasonably withheld, delayed or conditioned. The Indemnified Party may elect, by notice in writing to the Indemnifying Party, (y) the Indemnified Party has not provided to continue to participate through his or its own counsel, at his or its expense, but the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend control the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse defense of the Claim with counsel reasonably acceptable to the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to . In the extent it is a claim for which event that the Indemnifying Party is obligated controlling the defense of the Claim and shall have negotiated a settlement thereof, which proposed settlement is final and unconditional as to indemnify under this Agreementthe parties thereto and contains an unconditional release of the Indemnified Party, without the Indemnified Party being liable for damages of any kind or nature or being otherwise required to pay any amount of money to any third party and does not include the imposition of any restrictions on the part of the Indemnified Party or require that the Indemnified Party make an admission of guilt or liability or deliver a confession of judgment, or any other non-financial obligation which, in the reasonable judgment of the Indemnified Party, renders such settlement unacceptable, the Indemnified Party shall consent to such settlement.
Appears in 1 contract
Sources: Intangible Asset Purchase Agreement (Home Interiors & Gifts Inc)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each In the event of a Third Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service ReceiverClaim, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditionsshall apply:
(1a) The Indemnified the Claimant shall reasonably inform the Indemnifying Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) in writing of the existence Third-Party Claim in the relevant Notice of that Claim with all reasonable details and shall promptly make available to the latter and/or its counsels all relevant documentation which may be available;
(Bb) transmit the Claimant shall promptly grant and cause to grant to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature and/or its counsels access to all relevant books and records and premises and employees of the Claimant, NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be), to the extent reasonably necessary in connection with the defence of the Third Party Claim, and copies of any papers served with respect to such Claim. Within fifteen ;
(15c) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify give written notice to the Indemnified Claimant as to whether or not it wishes to participate to, by its own counsels, the defence of the Third-Party Claim it remaining agreed and understood that the defence will be in any event led by the Claimant who (1) shall retain, at its sole discretion, any decision as to the conduct of the defence and the proceedings (including the execution of a settlement), to the maximum extent possible under applicable Law, and (2) shall, if applicable, exercise its rights to cause NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be) to diligently and promptly manage any such Third-Party Claim, taking without delay any reasonable actions, and preparing, also through its counsels, any relevant filings, judicial or administrative acts or other documents, with due care; and (3) shall regularly (in reasonable intervals) inform the Indemnifying Party will assume control about the status of the defense matter and settlement of such claim (a “Notice of Assumption”).
(2) If promptly notify the Indemnifying Party delivers of all material correspondence or other actions or developments in connection with the Third-Party Claim;
(d) in the event that a Notice of Assumption within firm offer is made to the required notice periodClaimant, or to NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be), to settle any matter giving rise to an indemnification obligation under Section 8 or Section 9, which the Claimant, but not the Indemnifying Party, is willing to accept, the Indemnifying Party Claimant, or NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be), shall assume control (subject be entitled to Indemnified Party’s right to participate enter into such settlement at its own expense) over it sole discretion; it being understood that in the defense and settlement of the claim and diligently defend the claim; provided, however, that event that: (i) the Indemnifying Party shall keep requests that the Indemnified Claimant, or to NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be) asks for a Third Party fully apprised as Expert confirmation that the terms and conditions of the settlement are in their best interest, (ii) such an opinion is rendered and does not confirm that the settlement is in the best interest of the above companies, then if any indemnification is due pursuant to the status terms and conditions of this Agreement then such indemnification shall be limited to 50% (fifty percent) of its value, subject to the limitations set forth in Sections either 8 or 9 (as the case may be). For the avoidance of doubt it is understood between the Parties that, in case the opinion rendered confirms that the settlement is in the best interest of the defenseClaimant, or NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be), then if any indemnification is due in accordance with the terms and conditions of this Agreement to the Claimant, or NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be) it should be paid for 100% (one hundred percent) of its value, subject to the limitations set forth in Sections either 8 or 9 (as the case may be);
(e) in the event that (x) a firm offer is made to the Claimant, or to NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be), to settle any matter giving rise to an indemnification obligation under Section 8 or Section 9, which the Indemnifying Party, but not the Claimant, is willing to accept, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (xy) the Indemnifying Party has delivered a timely Notice of Assumption accepted in writing its indemnification obligation under Section 8 or Section 9 (as the case may be) in relation to such Third Party Claim, then the Claimant, and NewCo, CE Compression, SAFE, SAFE SG or any Compression Subsidiary (as the case may be) shall be free and, if the Claimant is CE, LR shall exercise its rights to allow NewCo, CE Compression, SAFE, SAFE SG, or any Compression Subsidiary (as the case may be), not to enter into such amount was agreed settlement and to without the written consent of commence or continue litigation, at its/their own expense, but the Indemnifying Party, (y) ’s liability shall be limited to the Indemnified Party has not provided amount of the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.proposed settlement;
(3f) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice periodit is also understood that, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated in participating to the relevant Third-Party Claim shall be borne by the Indemnifying Party. If it results that the Indemnifying Party has no obligation to indemnify under Section 8 or Section 9, any costs and expenses reasonably incurred by the Indemnifying Party in connection with the defense (including advisors fees) shall be borne by the Claimant;
(g) the material failure (as it may be determined in proceedings under Section 13.8) by the Claimant to comply with any of the obligations under this AgreementSection 10.4 shall release the Indemnifying Party from its indemnification obligations provided under this Agreement with respect to the Loss referred to in the Notice of Claim and fro which the Claimant has not complied with; and
(h) any indemnification amount due by the Indemnifying Party in relation to a Third-Party Claim shall be paid, to the entity directly affected by the Loss in accordance with Sections 8.2(e) and/or 9.2(e) (as applicable), exclusively after the issuance of a definitive court decision or order or an arbitration award deciding on the Third-Party Claim, or a definitive settlement agreement on the Third-Party Claim (provided that such settlement agreement is entered into with the prior written consent of the Indemnifying Party in compliance with the above provisions), and within 20 (twenty) Business Days after the issuance of such definitive judicial judgement or arbitration award or the execution of such settlement agreement.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each 10.1 Where an Indemnified Party has received Notice of any Claim or becomes aware of any matter which may result in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement Claim from any other Person (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
such Indemnified Person shall within 30 (1thirty) The Indemnified days of receiving such Notice or becoming aware of any Third Party shallClaim, with reasonable promptness after the Indemnified Party has give written notice of a Claim, (A) notify the such Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice in reasonable detail in light of the circumstances then known to the Indemnified Party (a “Third Party Claim Notice”) describing, in reasonable detail, ); provided that the nature failure of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if provide such notice shall not relieve the Indemnifying Party has received notice from of its obligations under Clause 5 of the Indemnified Agreement.
10.2 Upon receipt of the Third Party relating to any Claim at least five (5) days before that dateNotice, the Indemnifying Party shall notify be obligated to undertake necessary legal actions to defend the Claim or take such action as may be best suitable in the circumstances with counsel reasonably satisfactory to the Indemnified Party, at such Indemnifying Party’s sole expense. Notwithstanding the foregoing, the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim may, (a “Notice of Assumption”).
(2i) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense, retain separate counsel to participate in such defence or any negotiations or settlement thereunder or (ii) over in the event the Indemnifying Party fails to assume such defense within the period set out in paragraph 8.3(i) below, the Indemnified Party may assume the defense and settlement of the claim and diligently defend the claim; providedor compromise such Third Party Claim by itself, however, that in which case: (ia) the Indemnifying Party shall keep remain liable for the Indemnified Party fully apprised as to the status of the defense, costs and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement expenses of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Third Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement Claim including all court costs and payment of any claim if interim amounts; (xb) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend contest, settle, compromise or otherwise dispose of such Third Party Claim without the claim in such manner as it may deem appropriate. consent of the Indemnifying Party.
10.3 The Indemnifying Party shall promptly reimburse make the indemnity payment in cash (or such other manner agreed in writing between the Indemnified Party for all reasonable costs and Indemnifying Party) to the Indemnified Party upon occurrence of earlier of the following: (i) the Indemnifying Party failing to assume defence within 10 (ten) days from the receipt of the Third Party Claim Notice or such other period within which such defense ought to be assumed to comply with requirements mandated by the third party claimant’s notice (where the third party claimant is a Governmental Authority) or otherwise as required under Applicable Law; or (ii) the Indemnifying Party having assumed the defence of the Third Party Claim, where a payment obligation under a Third Party Claim becomes due and payable including pursuant to a judgement, order by any Governmental Authority or arbitral award, in each case, which is not subject to any stay or other legal suspension or postponement, or a settlement or compromise having been consummated. Provided however that during the process of defense of the Third Party Claim, if the Indemnified Party is required to incur any costs/expenses incurred (including but not limited to pursuant to a notice from any Governmental Authority or interim order passed by a court of law requiring the payment of whole or in part of the Third Party Claim), the Indemnifying Party shall immediately upon receipt of a notice from the Indemnified Party in this regard, remit the said amounts to the Indemnified Party, including attorneys’ feessubject to receipt of documents evidencing such amounts being payable, in connection therewith or otherwise discharge such Third Party Claim (as per the instructions of the Indemnified Party),
10.4 The Indemnifying Party agrees that it will not, without the prior written consent of the Indemnified Party: (i) make any payment to the extent it is relevant third party; (ii) consent to the entry of any judgment; (iii) enter into any settlement, with respect to any such Third Party Claim; and /or (iv) make any filings or written submission, whether independently or in response to any request or requirement to make such submission with any other third party including a claim for which Governmental Authority, with respect to the Indemnifying Third Party is obligated to indemnify under this AgreementClaim.
Appears in 1 contract
Sources: Subscription Agreement
Third Party Claim. The In the event of a Third-Party Claim, the party seeking indemnification obligation pursuant to Section 8.1(b("Tendering Party") for each shall tender the defense of such Third Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject Claim to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party party from whom indemnification is sought (the “Indemnifying "Non-Tendering Party”) of the existence of that Claim and "). The Non-Tendering Party shall, within ten (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (510) days before that dateafter the receipt thereof, inform the Indemnifying Tendering Party shall notify the Indemnified Party in writing that the Indemnifying Non-Tendering Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).either:
(2I) ACCEPT THE TENDER OF THE DEFENSE WITHOUT A RESERVATION OF RIGHTS. If the Indemnifying Non-Tendering Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, agrees that the Indemnified Third Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it Claim is a claim for which indemnification is provided for pursuant to the Indemnifying terms of this agreement ("Proper Claim"), the Non-Tendering Party shall accept the tender of the defense without a reservation of rights. In such an event the Non-Tendering Party shall control all aspects of the defense of such Third Party Claim and shall indemnify the Tendering Party in accordance with this Article VI.
(II) ACCEPT THE TENDER OF THE DEFENSE WITH A RESERVATION OF RIGHTS. If the Non-Tendering Party questions whether the Third Party Claim is obligated a Proper Claim, the Non-Tendering Party may accept the tender of the defense with a reservation of rights. In such an event, the Non-Tendering Party shall submit such Third Party Claim to arbitration immediately in order to determine whether it is a Proper Claim. While the arbitration is pending, the Non-Tendering Party shall control all aspects of the defense of such Third Party Claim. If the decision of the arbitrator(s) is that it is:
(A) a Proper Claim, and the Third Party Claim is still pending, the Non-Tendering Party shall continue the defense of such Third Party Claim and shall defend, indemnify under and hold the Tendering Party harmless in accordance with this AgreementArticle VI;
(B) a Proper Claim, but the Third Party Claim has already been concluded, the Non-Tendering Party shall indemnify and hold the Tendering Party harmless in accordance with this Article VI;
(C) a claim for which indemnification is not provided for pursuant to the terms of this agreement ("Improper Claim"), and the Third Party Claim is still pending, the Non-Tendering Party shall return all aspects of the defense of such Third Party Claim immediately to the Tendering Party. In such an event, the Tendering Party shall assume the control of all aspects of the defense of such Third Party Claim immediately and shall reimburse the Non-Tendering Party for all costs and Expenses (including, but not limited to, reasonable attorneys fees) incurred by the Non-Tendering Party in the defense of such Third Party Claim; or
(D) an Improper Claim, but the Third Party Claim has already been concluded, the Tendering Party shall reimburse the Non-Tendering Party for all costs and expenses (including, but not limited to reasonable attorneys fees) incurred by the Non-Tendering Party in the defense of such Third Party Claim and shall reimburse the Non-Tendering Party for all amounts paid by the Non-Tendering Party for judgments or settlements relating to such Third Party Claim.
Appears in 1 contract
Sources: Purchase Agreement (Novex Systems International Inc)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each In the event of a Third-Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service ReceiverClaim, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditionsshall apply:
(1a) The Indemnified the Claimant shall inform the Indemnifying Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) in writing of the existence Third-Party Claim in the relevant Notice of that Claim with all reasonable details and shall promptly make available to the latter and/or its counsels all relevant documentation which may be available;
(Bb) transmit the Claimant shall promptly grant and cause to grant to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detailand/or its counsels access to all relevant books and records and premises and employees of the Claimant, the nature Company or any Subsidiary (as the case may be), to the extent reasonably necessary in connection with the defense of the Third-Party Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).;
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (ic) the Indemnifying Party shall keep give written notice to the Indemnified Party fully apprised Claimant as to whether or not it wishes to participate to, by its own counsels, the defense of the Third-Party Claim it remaining agreed and understood that the defense will be in any event led by the Claimant who (1) shall retain, at its sole discretion, any decision as to the conduct of the defense and the proceedings (including the execution of a settlement), to the maximum extent possible under applicable Law, and (2) shall, if applicable, exercise its rights to cause the Company or any Subsidiary (as the case may be) to diligently and promptly manage any such Third-Party Claim, taking without delay any reasonable actions, and preparing, also through its counsels, any relevant filings, judicial or administrative acts or other documents, with due care and with the view of minimizing the Third-Party Claim; and (3) shall regularly (in reasonable intervals) inform the Indemnifying Party about the status of the defense, matter and (ii) promptly notify the Indemnifying Party shall obtain of all material correspondence or other actions or developments in connection with the prior written approval of Third-Party Claim;
(d) in the Indemnified Party before entering into event that an offer is made to the Claimant, the Company or any settlement of such claim asserting Subsidiary (as the case may be), to settle any liability against matter giving rise to an indemnification obligation, which the Indemnified Claimant, but not the Indemnifying Party, imposing is willing to accept, the Claimant, the Company or any obligations or restrictions on Subsidiary (as the Indemnified Partycase may be), ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense enter into such settlement, but the extent of the Indemnifying Party’s indemnification obligation will be agreed between the Parties in good faith, or, failing agreement, decided by arbitration hereunder as the amount of the settlement, or, if lower, as an amount equal to participate the Loss/Damage that, in the handling determination of the claim. The Indemnifying Party shall arbitration panel, would have occurred if the matter had not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party been settled;
(e) in the settlement of any claim if event that (x) an offer is made to the Claimant, the Company or any Subsidiary (as the case may be), to settle any matter giving rise to an indemnification obligation, which the Indemnifying Party, but not the Claimant, is willing to accept, and (y) the Indemnifying Party has delivered accepted in writing its indemnification obligation in relation to such Third-Party Claim, then the Claimant, the Company or any Subsidiary (as the case may be) shall be free not to enter into such settlement and to commence or continue litigation, at its/their own expense, but the Indemnifying Party’s liability shall be limited to the amount of the proposed settlement;
(f) it is also understood that, all costs and expenses incurred by the Indemnifying Party in participating to the relevant Third-Party Claim shall be borne by the Indemnifying Party; and
(g) any indemnification amount due by the Indemnifying Party in relation to a timely Notice Third-Party Claim shall be paid, to the entity directly affected by the Loss, exclusively after the issuance of Assumption and a definitive court decision or order or an arbitration award deciding on the Third-Party Claim, or a definitive settlement agreement on the Third-Party Claim (provided that such amount was agreed to without settlement agreement is entered into with the prior written consent of the Indemnifying PartyParty in compliance with the above provisions), and within 30 (ythirty) Business Days after the Indemnified Party has not provided the Indemnifying Party with notice issuance of such claim and a reasonable opportunity to respond thereto, definitive judicial judgement or (z) arbitration award or the time period within which to deliver a Notice execution of Assumption has not yet expiredsuch settlement agreement.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with With respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “any Third Party Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify have the Indemnified Party that the Indemnifying Party will right, at its expense, to participate in or assume control of the defense and negotiation, settlement or defence of the Claim and, in such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice periodevent, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify reimburse the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) all the Indemnified Party has not provided the Indemnifying Party with notice Party's out-of-pocket expenses as a result of such claim and a reasonable opportunity to respond thereto, participation or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) assumption. If the Indemnifying Party does not deliver a Notice of Assumption relating elects to any claim within the required notice periodassume such control, the Indemnified Party shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the claim in Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such manner as it may deem appropriate. The control, and the Indemnifying Party shall promptly be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for all reasonable costs and expenses incurred such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which such payment was made, as finally determined, is less than the amount that was paid by the Indemnifying Party to the Indemnified Party, including attorneys’ feesthe Indemnified Party shall, in connection therewith forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this AgreementParty.
Appears in 1 contract
Sources: Share Purchase Agreement (International Menu Solutions Corp)
Third Party Claim. The indemnification obligation pursuant a) If the Compensable Event relates to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiverclaim, in each caselegal action, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) proceeding brought by a third party party, including any Government Entity (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditionsshall proceed as follows:
(1i) The Indemnified Affected Party shallshall send a written notice to the Accused Party, together with reasonable promptness after copies of all documents of the Indemnified Third Party has notice Claim and any other relevant documents, before the earlier of (x) the fulfillment of a period of ten (10) days following the date on which the Accused Party is notified or becomes aware of the respective Third Party Claim, and (Ay) notify two (2) business days prior to the date of the deadline to give response to such claim in a manner that allows the Accused Party from whom indemnification is sought to respond or object in a timely manner to such Third Party Claim in accordance with applicable law (the “Indemnifying PartyNotification of Third Party Claim”) ). The Parties agree that only in the event that the delay in sending such Notification of Third Party Claims by the Accused Party to make innocuous the rights of defense of the existence of that Claim and (B) transmit Accused Party in the respective Process, the Accused Party shall lose the right to compensation in relation to the Indemnifying Loss that may arise from the corresponding Third Party a notice Claim.
(a “Claim Notice”ii) describingThe Accused Party shall have the right, upon becoming aware of any Third Party Claim, to take measures, and hire experts, consultants, and/or legal counsel that they in reasonable detailgood faith may deem necessary or appropriate to assume the exclusive defense of such claim, and the nature Accused Party shall assume the responsibility for all the costs incurred in connection with such Third Party Claim, including costs associated with the outcome of the Claim, and copies of any papers served with respect to such Claimclaim or the transaction itself. Within fifteen (15) calendar business days following the receipt of notice from the Indemnified Notification of Third Party relating to any Claim, but no later than five (5) calendar days before the date Accused Party must give written notice to the Affected Party of its decision whether to take on which the defense against the Third Party Claim. In any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that datecase, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Accused Party shall be entitled to employ counsel participate in such defense at its own expense cost and with the lawyers appointed at its discretion. In any case, the Parties agree to participate provide to each other, without compensation, assistance that may reasonably require the other Party in the handling order to ensure proper and adequate defense of any Third Party Claim, and each Party agrees to defend and require its designated legal advisor to defend any Third Party Claim diligently and in good faith.
(iii) In no case may any of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid Parties reach an agreement, reconciliation, transaction, or payable by such Indemnified Party in the settlement cancellation of any claim if or demand (xincluding, without limitation, under any applicable amnesty Law) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the prior written consent of the Indemnifying other Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3iv) If the Indemnifying Party does not deliver Compensable Event comes from a Notice of Assumption relating judicial or arbitral decision, it shall be required to any claim within be enforceable in order for compensation to be enforceable, so that at the required notice periodtime the judicial or arbitral decision is clearly made, the Indemnified Accused Party shall have be obliged to indemnify the right amounts due from such decisions in favor of the Affected Party.
(v) In any Processes related to defend the claim in such manner Compensable Event and those included with the Affected Party as a defendant or impleader, the Accused Party may be, at the discretion of the Affected party, impleader or attached to the Process so that it complies with its obligation of indemnity when any harm against the Affected Party arises or may deem appropriatearise. The Indemnifying If the Accused Party shall promptly reimburse was not named impleader or attached to the Indemnified Process concerning a Third Party for all reasonable costs and expenses incurred by Indemnified Claim of that included with the Affected Party, including attorneys’ feesthe Affected Party may, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify any case, assert their right of indemnity under this Agreement, against the Accused Party after the termination of the respective Process.
(vi) A Compensable Event originated in a Third Party Claim shall be deemed final and conclusive, when the amount of the corresponding loss:
1. It is not objected by the Accused Party; or
2. It is finally determined by agreement, conciliation, or transaction on a Third Party Claim that has the same effect as a final and unappealable decision of a competent authority (res judicata) and which has been previously accepted in writing by the Parties; or
3. It is recorded in an enforceable decision from a competent authority issued in the development of a Process.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with With respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertionany Third Party Claim, a “Claim”), are subject to the following terms and conditions:
(1) The procedure shall apply. Promptly after receipt by an Indemnified Party of notice of an action arising from a Third Party Claim such Indemnified Party shall, with reasonable promptness after the Indemnified if a claim in respect thereof is to be made against Indemnifying Party has give notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claimaction, but no later than five (5) calendar days before the date on which any response failure so to a complaint or summons is due if notify the Indemnifying Party has received notice from the shall not relieve it of any liability that it may have to any Indemnified Party relating except to the extent the Indemnifying Party demonstrates that the defense of such action is prejudiced thereby. In case any Claim at least five (5) days before that datesuch action shall be brought against an Indemnified Party and it shall give notice to the Indemnifying Party of the commencement thereof, the Indemnifying Party shall notify be entitled to participate therein and, to the Indemnified Party extent that it shall elect, to assume the defense thereof with its counsel and, after notice from the Indemnifying Party will assume control of the defense and settlement of to such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on of its election so to assume the Indemnified Partydefense thereof, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the such Indemnified Party for any amount paid fees of other counsel or payable any other expenses, in each case subsequently incurred by such Indemnified Party in connection with the defense thereof. If Indemnifying Party assumes the defense of such an action, (a) no compromise or settlement of any claim if (x) thereof may be effected by the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, 's consent (ywhich shall not be unreasonably withheld) unless (i) there is no finding or admission or any violation of law or any violation of the rights of any person and no effect on any other claims that may be made against the Indemnified Party has not or (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (zb) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the -27- Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right no liability with respect to defend the claim in such manner as it may deem appropriate. The Indemnifying Party any compromise or settlement thereof effected without its consent (which shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreementnot be unreasonably withheld).
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant In the event that CXNC, FFAX or any other party entitled to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Section 11.02 hereof shall choose to assert a claim for Loss or potential Loss based upon a claim by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject to the following terms and conditions:
party seeking indemnification (1"Indemnified Party") The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) shall notify the Party from whom party against which indemnification is sought (the “"Indemnifying Party”") in writing of such claim, promptly following the occurrence of the existence event giving rise thereto, certifying that such a claim has been asserted and the basis therefore which shall be set forth in reasonable detail ("Notification").
(i) The Indemnifying Party shall acknowledge receipt of that Claim the Notification and advise the Indemnified Party in writing twenty (B20) transmit days after receipt thereof as to whether the Indemnifying Party a notice (a “agrees to such Third Party Claim Notice”) describing, in reasonable detail, and whether the nature defense of the Claim, Third Party Claim shall be undertaken by counsel of the choice of and copies at the expense of any papers served with respect to such Claimthe Indemnifying Party. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if If the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that dateso agrees, the Indemnifying Party shall notify be deemed to have accepted any indemnifiable Loss suffered arising from such Third Party Claim, the defense of which has been assumed by the Indemnifying Party. If the Indemnifying Party advises the Indemnified Party that it shall undertake the defense of the Third Party Claim, the Indemnified Party shall deliver all the documents related to the Third Party Claim to the Indemnifying Party or to its counsel, after which the responsibility of the Indemnified Party for the defense of the Third Party Claim shall cease, except that the Indemnified Party shall make available all documents, books and records in its possession related to the Third Party Claim, at no expense to the Indemnifying Party, and shall fully cooperate with counsel for the Indemnifying Party, including providing its personnel who are acquainted with the facts or the documents or books and records related to the Third Party Claim.
(ii) If the Indemnifying Party advises the Indemnified Party that the Indemnifying Party will assume control defense of the defense and settlement Third Party Claim will not be undertaken, either the Indemnified Party shall settle such Third Party Claim (in which case, the amount of such claim (a “Notice settlement and all attorneys' fees attendant to the achievement of Assumption”such settlement shall be deemed included in any computation to determine Loss).
(2) If , or the Indemnified Party shall notify the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend identity of the claim; provided, however, that (i) the Indemnifying Party shall keep counsel for the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing who has been selected to defend against such claim or otherwise adversely impacting the Indemnified PartyThird Party Claim. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by fully cooperate with the Indemnified Party following and its counsel to the delivery extent that the Indemnifying Party has knowledge of a Notice the facts or circumstances relating to the Third Party Claim and the Indemnified Party shall cause its counsel to be available to the Indemnifying Party or its counsel to respond to any inquiries of Assumption; provided, however, the Indemnifying Party concerning the progress of such defense. In the event that the Indemnified Party shall be entitled to employ counsel at its own expense to participate assert a claim for Loss as a result of any loss suffered by the Indemnified Party in settling or defending such Third Party Claim, the handling Indemnified Party shall notify the Indemnifying Party in writing of the such claim. The Indemnifying Party shall not be obligated pay all costs related to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of or the defense within thirty (30) days after a demand for the Loss or any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredcomponent part is made.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.
Appears in 1 contract
Sources: Acquisition Agreement (Frefax Inc)
Third Party Claim. The indemnification obligation Upon receipt of notice of a claim for indemnity from an Indemnified Party pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date7.04, the Indemnifying Party shall notify have the right to assume the defense and control any Third Party Claim, but shall allow the Indemnified Party that the Indemnifying Party will assume control of a reasonable opportunity to participate in the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Third Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate Claim with its own counsel and at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, provided that if (i) the Indemnifying Party shall keep and the Indemnified Party fully apprised as are both named parties to the status proceedings and, in the reasonable opinion of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against counsel to the Indemnified Party, imposing any obligations representation of both parties by the same counsel would be inappropriate due to actual or restrictions potential differing interests between them, or (ii) in the reasonable opinion of counsel to the Indemnified Party, such Third Party Claim involves the potential imposition of criminal liability on the Indemnified Party, ceasing then, in each such case, the applicable Indemnified Parties shall be entitled to defend against participate in any such claim or otherwise adversely impacting defense with one separate counsel at the Indemnified reasonable expense of the Indemnifying Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by select counsel of recognized standing and competence after consultation with the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party and shall be entitled to employ counsel at its own expense to participate take all reasonably necessary steps in the handling defense or settlement of the claimsuch Third Party Claim. The Indemnifying Party shall not be obligated authorized to indemnify consent to a settlement of, or the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement entry of any claim if (x) judgment arising from, any Third Party Claim, without the consent of any Indemnified Party, provided that the Indemnifying Party has delivered a timely Notice shall
(A) pay or cause to be paid all amounts arising out of Assumption and such amount was agreed to without settlement or judgment concurrently with the written consent effectiveness of such settlement, (B) not encumber any of the Indemnifying Party, (y) the material assets of any Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating agree to any claim within the required notice period, the restriction or condition that would apply to or materially adversely affect any Indemnified Party shall have or the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by conduct of any Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.’s business,
Appears in 1 contract
Sources: Asset Purchase Agreement
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(a) In the event any claim for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Article VI is based on a claim asserted by a third party (that third-party claim or assertioni.e., a Person other than a party hereto or its Affiliates, or agents) (a “Third-Party Claim”), are subject the party seeking indemnification shall give prompt written notice to such other party of the Third-Party Claim, which notice shall specify in reasonable detail the basis of such claim and the facts pertaining thereto, and indicating the best estimate of the amount to the following terms and conditions:extent determinable or estimable as of such notice date of the Damages that has been requested by the Indemnified Party; provided that the failure to so notify any Indemnifying Party shall not relieve such Indemnifying Party of its obligations hereunder except to the extent such failure shall have prejudiced such Indemnifying Party.
(1b) The Indemnified Party shall, with reasonable promptness after In the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies event of any papers served with respect to such Third-Party Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify have the right, exercisable by written notice to the Indemnified Party that within thirty (30) days of receipt of a Claims Notice to assume and conduct the defense of the underlying Third-Party Claim with counsel selected by the Indemnifying Party will and reasonably satisfactory to the Indemnified Party; provided, that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assumes control of the defense, which, notwithstanding the foregoing, shall be borne by the Indemnifying Party). Notwithstanding the foregoing, the Indemnifying Party shall not have the right to assume control of the defense of any Third-Party Claim and settlement shall pay the reasonable fees and out-of-pocket expenses of separate counsel retained by all such claim (a “Notice of Assumption”).
(2) If the Indemnifying Indemnified Parties with respect to such Third-Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that Claim if: (i) the Indemnifying Party shall keep does not conduct the Indemnified Party fully apprised as to the status defense of the defense, and Third-Party Claim with reasonable diligence; or (ii) the Third-Party Claim seeks non-monetary, equitable or injunctive relief, (ii) alleges violations of criminal law, or (iii) includes as the named parties in any such Third-Party Claim both an Indemnified Party and an Indemnifying Party, and either a defense is available to an Indemnified Party that is not available to an Indemnifying Party shall obtain or applicable ethical guidelines provide that, in either case, it would be inappropriate to have the prior written approval of same counsel represent both parties. If the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall has assumed such defense as provided in this Section 4.5(b), the Indemnifying Party will not be liable for any attorney’s fees and legal fees or expenses subsequently incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in connection with the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice defense of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) claim. If the Indemnifying Party does not deliver a Notice assume the defense of Assumption relating to any claim within the required notice periodThird-Party Claim in accordance with this Section 4.5(b), the Indemnified Party shall have the right may continue to defend such claim at the claim in such manner as it may deem appropriate. The reasonable cost of the Indemnifying Party, which Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs pay as expenses are incurred, and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreementmay still participate in, but not control, the defense of such Third-Party Claim at the Indemnifying Party’s sole cost and expense.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(a) for each Party in If any third party shall notify Purchaser or its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, affiliates hereto with respect to Damages claimed any matter asserted by such third party against the Company, the Surviving Corporation or asserted against the Subsidiary (hereinafter referred to as a person claiming indemnification under this Agreement (an “Indemnified PartyThird Party Claim”) which may give rise to a claim by a third party (that third-party claim or assertionPurchaser against the Holdback Shares, a “Claim”), are subject then Purchaser shall give notice to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice Stockholders Representative within 15 days of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies Purchaser becoming aware of any papers served such Third Party Claim or of facts upon which any such Third Party Claim will be based setting forth such material information with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Third Party relating Claim as is reasonably available to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claimPurchaser; provided, however, that no delay or failure on the part of Purchaser in notifying the Stockholders Representative shall relieve the Stockholders Representative and the Holdback Beneficiaries from any obligation hereunder unless the Stockholders Representative and the Holdback Beneficiaries are thereby materially prejudiced (and then solely to the extent of such prejudice). The notice from Purchaser to the Stockholders Representative shall set forth such material information with respect to the Third Party Claim as is then reasonably available to Purchaser.
(b) Purchaser shall have the first right to undertake the defense and to compromise or settle any Third Party Claim or consent to entry of any judgment in respect thereof in any manner it may deem appropriate; provide that Purchaser shall (i) cooperate with Stockholders Representative in the Indemnifying defense of any Third Party shall keep the Indemnified Party fully apprised as to the status of the defense, and Claim; (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party), imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) where the Indemnifying Party has delivered a timely Notice sole remedy is monetary damages the amount of Assumption and such amount was agreed to without which is less than the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice periodHoldback, the Indemnified Party Shareholder Representative shall have the right to defend participate in the defense thereof and (iii) shall not settle any Third Party Claim until it has communicated to Shareholder Representative its intent to do so.
(c) In all cases, the Stockholders Representative and the Holdback Beneficiaries will reasonably cooperate with Purchaser or its affiliates in the defense of that claim and will provide reasonable access to documents, assets, properties, books and records reasonably requested by Purchaser and material to the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party and will make reasonably available all individuals reasonably requested by Purchaser for all reasonable costs investigation, depositions and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreementtrial.
Appears in 1 contract
Sources: Merger Agreement (iVOW, Inc.)
Third Party Claim. The indemnification obligation pursuant (a) If the Indemnified Party seeks indemnity under this Article IX in response to Section 8.1(b) for each a claim or Proceeding by another Person not a Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after then the Indemnified Party has notice of shall promptly give a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit Notice to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claimdeadline set forth in Section 9.3(a); provided, however, that (i) no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party shall keep relieve the Indemnified Indemnifying Party fully apprised as of any liability under this Agreement except to the status extent such delay or deficiency prejudices or otherwise adversely affects the rights of the defenseIndemnifying Party with respect thereto.
(b) In the event of a Third Party Claim, and (ii) the Indemnifying Party shall obtain be entitled to participate in the prior written approval defense thereof and, if it so chooses, assume at any time control of the defense thereof with counsel reasonably satisfactory to the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing by giving to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following written notice of its intention to assume control of the delivery defense of a Notice of Assumptionsuch Third Party Claim; provided, however, that the Indemnified Party shall be entitled to employ may participate in the defense of such Third Party Claim with its own counsel at its own expense expense. If the Indemnifying Party chooses to participate defend or prosecute a Third Party Claim, the Indemnified Party shall cooperate in the handling defense or prosecution of the claimThird Party Claim. With respect to any Third Party Claim relating to the items separately set forth in Schedule 9.1(g), the provisions of this Section 9.4(b) supplements and shall not prejudice the provisions of Section 9.3(d).
(c) The Indemnifying Party shall not be obligated agree to indemnify any settlement of, or consent to the entry of any Judgment (other than a Judgment of dismissal on the merits without costs) arising from, any such Third Party Claim without the prior written consent of the Indemnified Party for any amount paid (such consent shall not be unreasonably delayed, withheld or payable made conditional by such the Indemnified Party); provided, however, that the consent of the Indemnified Party in the settlement of any claim shall not be required if (x) the Indemnifying Party has delivered a timely Notice of Assumption agrees in writing to pay any amounts payable pursuant to such settlement or any Judgment and such amount was agreed settlement or Judgment includes a full, complete and unconditional release of the Indemnified Party from further liability. The Indemnified Party shall not agree to any settlement of, or the entry of any Judgment (other than a Judgment of dismissal on the merits without costs) arising from, any such Third Party Claim without the prior written consent of the Indemnifying Party (such consent shall not be unreasonably delayed, withheld or made conditional by the Indemnifying Party); provided, (y) however, that the Indemnified Party has not provided consent of the Indemnifying Party with notice of such claim and shall not be required in the case that Purchaser agrees to a reasonable opportunity to respond theretosettlement of, or (zconsent to the entry of any Judgment, with respect to any Third Party Claim relating to the items separately set forth in Schedule 9.1(g) to the time period within which to deliver a Notice of Assumption has not yet expiredextent that such settlement or Judgment is commercially reasonable.
(3d) If Without limiting the Indemnifying foregoing, if Seller or any of its Affiliates receives a Claim Notice or Third Party does Claim arising out of any litigation matter referred to in Schedule 9.1(g) that is reasonably expected to give rise to a Loss to Purchaser or any of its Affiliates (whether or not deliver a Notice of Assumption relating subject to indemnification by Seller pursuant to Section 9.1(g)), then (i) Purchaser and its applicable Affiliates shall be entitled to participate in the defense thereof at its and their own expense and (ii) Seller shall not settle or agree to any claim within the required notice periodsettlement of, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith or consent to the extent it is entry of any Judgment (other than a claim for which Judgment of dismissal on the Indemnifying merits without costs) arising from, any such Claim Notice or Third Party is obligated to indemnify under this AgreementClaim without the prior written consent of Purchaser or its applicable Affiliates (such consent shall not be unreasonably delayed, withheld or made conditional by Purchaser or its applicable Affiliates).
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(i) for each If any of the Indemnified Parties receive a notice of assertion or commencement of any Claim by a Third Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement any Indemnification Event (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) Parties shall notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to in writing the Indemnifying Party a of such Third Party Claim. The failure or delay to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its liability or obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party (provided that where such delay or failure to notify the Indemnifying Party has resulted in an increase in the quantum of Loss suffered or incurred by the Indemnified Party, the Indemnifying Party shall be relieved of its obligations hereunder only to the extent of such increased Loss).
(ii) The Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Parties within 15 (a “Claim Notice”fifteen) describing, days of the notice mentioned in reasonable detail, Clause 8.4.2(i) (or earlier if the nature of the Third Party Claim so requires and in no event later than 2 (two) Business Days prior to the outer date by which such notice is to be responded to assume the defence of such Third Party Claim (at its own cost) with a suitable/appropriate counsel selected by the Indemnifying Party, and such Indemnifying Party shall promptly notify the relevant Indemnified Parties of such selection of counsel. If the Indemnifying Party has assumed the defence of such Third Party Claim, and copies the Indemnifying Party shall continue to remain liable towards the relevant Indemnified Parties for any Loss suffered by them as a result of any papers served with respect to such Third Party Claim. Within fifteen (15) calendar days following receipt Without prejudice to the other rights of notice from the Indemnified Party relating to any ClaimParties under this Agreement, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified assumed control of a Third Party relating to any Claim at least five (5) days before that dateClaim, the Indemnifying Party shall notify not have the right to consent to a compromise or settlement of the Third Party Claim without seeking the prior written consent of AHCL, if: (a) such Third Party Claim is criminal in nature; or (b) such compromise or settlement results in any direct or indirect admission of guilt or wrong- doing on the part of any of the Indemnified Party that Parties or the Company. Without prejudice to the foregoing, if the Indemnifying Party has assumed the defence of any Third Party Claim as provided in Clause 8.4.2(ii), it shall not without written consent of AHCL, consent to any settlement or understanding or admit any liability, in connection therewith unless the relevant Indemnified Parties will assume control be fully indemnified for (and not be required to go out of the defense and settlement pocket) all Losses arising out of such claim (a “Notice of Assumption”)settlement or compromise in accordance with this Clause 8.
(2iii) If the Indemnifying Party delivers does not assume defence in any Third Party Claim in accordance with Clause 8.4.2(ii), the relevant Indemnified Parties may defend the Third Party Claim at their discretion in which case all expenses including administrative expenses and costs including legal fees, deposits or guarantees required to be made in any proceedings and/or judicial awards with respect to such Third Party Claim, shall be borne by the Indemnifying Party, and the Indemnifying Party shall pay the entire amount to the relevant Indemnified Parties in the manner set out in Clause 8.4.1(iii), which shall mutatis mutandis apply. Notwithstanding anything contained in this Clause 8.4.2, it is hereby clarified that the Indemnifying Party shall not be entitled to assume control of defense if the Claim for indemnification relates to or arises in connection with any proceeding, action, indictment, allegation or investigation, which in each case is: (a) in connection with the Subscription Shares; (b) or in relation to an alleged violation of any Sanctions Laws and Regulations; (c) criminal in nature where the penalty of the alleged offence involves criminal liability of AHCL, AHCL’s shareholders or AHCL’s nominee directors on the Board; or (d) seeking injunctive or equitable relief against AHCL, or any of AHCL’s nominee directors on the Board or AHCL’s shareholders.
(iv) If the relevant Indemnified Parties have assumed the conduct of any dispute, defence, compromise or appeal of a Notice of Assumption within the required notice periodThird Party Claim, the Indemnifying Party shall fully cooperate with the relevant Indemnified Parties in relation to the conduct of any such dispute, defence, compromise or appeal of the Third Party Claim. With respect to Third Party Claims which: (a) the Indemnified Parties are entitled to assume control the conduct of the dispute, defence, compromise or appeal of, in terms of Clause 8.4.2(iii); or (subject b) the Indemnifying Party being entitled to assume the conduct of the dispute, defence, compromise or appeal of, in terms of this Clause 8, does not assume defence of in accordance with Clause 8.4.2(ii), the Indemnified Parties shall have the right to consent to a compromise or settlement of the Third Party Claim without seeking the prior written consent of the Indemnifying Party’s , who shall be bound by the terms of such settlement.
(v) Subject to Clause 8.4.2(iii), the Indemnified Parties shall have the right to participate in the negotiation, settlement or defence (but not control), at its own expense, in the defence of any Third Party Claim which the Indemnifying Party is defending as provided in this Agreement; and the expenses of such counsel shall be borne by the Indemnified Parties. The Indemnified Parties and the Indemnifying Party shall co-operate and provide any necessary assistance as may be reasonably required in any judicial proceeding in relation to the Third Party Claims.
(vi) over The Indemnifying Party shall bear the defense and settlement responsibility for providing any guarantee or making any deposits ordered in any judicial proceedings in relation to the Third Party Claim or making any interim payments in relation to a Third Party Claim, regardless of whether the claim and diligently defend Indemnifying Party has assumed the claim; defence or not, provided, however, that (i) that, if the Indemnifying Party shall keep fails to deposit/ pay the Indemnified Party fully apprised as to amount within the status of the defenseprescribed time, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense and may proceed to participate in deposit or pay the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any requisite amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim be indemnified in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under accordance with this AgreementClause 8.
Appears in 1 contract
Sources: Share Subscription Agreement
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and Promptly after receipt by the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service ReceiverBuyer or the Parent of notification of the assertion, in each caseor possible assertion, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim of any claim, action, suit, proceeding or assertion, a “Claim”), are subject demand with respect to which indemnification shall or may be claimed by the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after Buyer or the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought Parent pursuant to this Section 6 (the “Indemnifying PartyThird Party Claim”) of (such recipient being referred to hereinafter as the existence of that “Indemnitee”) the Indemnitee shall give written notice describing the Third Party Claim and in reasonable detail (B) transmit to the Indemnifying Party a notice (a an “Claim Indemnity Notice”) describingto the other party (herein, the “Indemnitor”). Failure by the Indemnitee to send the Indemnity Notice shall not release the Indemnitor from its obligations hereunder except to the extent that the failure to send the Indemnity Notice prejudices the rights of the Indemnitor. The Indemnitor shall, at its option, have full authority to defend any such claim, action, suit, proceeding or demand, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement name of such claim (a “Notice of Assumption”).
(2) If Indemnitee or otherwise as the Indemnifying Party delivers a Notice of Assumption within Indemnitor shall elect utilizing counsel reasonably acceptable to the required notice periodIndemnitee, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that unless (i) the Indemnifying Party shall keep Indemnitee reasonably objects to such assumption on the Indemnified Party fully apprised as ground that counsel for such Indemnitor cannot represent both the Indemnitee and the Indemnitor because such representation would be reasonably likely to result in a conflict of interest or because there may be defenses available to the status of the defenseIndemnitee that are not available to such Indemnitor, and (ii) the Indemnifying Party shall obtain the prior written approval Indemnitor is not capable (by reason of the Indemnified Party before entering into any settlement insufficient financial capacity, bankruptcy, receivership, liquidation, managerial deadlock, managerial neglect or similar events) of maintaining a reasonable defense of such claim asserting any liability action or proceeding, (iii) the action or proceeding seeks injunctive or other equitable relief against the Indemnified PartyIndemnitor, imposing any obligations or restrictions on (iv) the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting amount in controversy exceeds the Indemnified Partyamount for which the Indemnitor is liable under this Section 6.2. The Indemnifying Party Indemnitor shall not be liable for adjust, compromise or settle any legal fees such claim, action, suit, proceeding or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to demand without the written consent of the Indemnifying PartyIndemnitee, which consent shall not be unreasonably withheld. As to any Third Party Claim the defense of which has been assumed by the Indemnitor, (yi) the Indemnified Party has not provided Indemnitee shall cooperate fully in such defense as and to the Indemnifying Party with notice extent reasonably requested by the Indemnitor (such cooperation shall include the retention and, upon the Indemnitor’s request, the provision to the Indemnitor of records and information that are reasonably relevant to such claim or demand and making employees available on a reasonable opportunity mutually convenient basis to respond thereto, or provide additional information and explanation of any material provided hereunder) and (zii) the time period within which Indemnitor shall not, subsequent to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to such assumption, be liable for any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and legal expenses incurred by Indemnified Partythe Indemnitee. In the event of any claim under this Section 6 for indemnification (whether or not in connection with a Third Party Claim), including attorneys’ feesthe Indemnitee shall promptly advise the Indemnitor in writing, in connection therewith reasonable detail, of the amount and circumstances surrounding said claim (which notice shall also be deemed to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreementbe an Indemnity Notice).
Appears in 1 contract
Sources: Partnership Interest Purchase Agreement (Healthtronics Surgical Services Inc)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each In the case of any Third Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service ReceiverClaim, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness if within [***] after the Indemnified Party has receiving notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that dateclaim for indemnification, the Indemnifying Party shall notify (i) gives written notice to the Indemnified Party stating that such Indemnifying Party would be liable in the amount of such claim if such claim were valid and that such Indemnifying Party disputes and intends to defend against such Third Party Claim at its or their own cost and expense and (ii) provides reasonable assurance to such Indemnified Party that such indemnification will be paid fully and promptly if required and such Indemnified Party will not incur cost or expense during the proceeding, then counsel for the defense shall be selected by the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to the consent of the Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim, which consent shall not be unreasonably withheld); provided, however, that (i) the assumption of defense of any such matters by the Indemnifying Party shall relate solely to the Third Party Claim that is subject or potentially subject to indemnification. If the Indemnifying Party assumes such defense in accordance with the preceding sentence, they shall have the right, with the consent of such Indemnified Party, which consent shall not be unreasonably withheld, to settle all indemnifiable matters related to such Third Party claims. The Indemnifying Party shall keep the Indemnified Party fully apprised as to of the status of the defenseclaim and any resulting suit, and (ii) the Indemnifying Party proceeding or enforcement action, shall obtain the prior written approval of furnish the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by with all documents and information that the Indemnified Party following shall reasonably request and shall consult with the delivery Indemnified Party prior to acting on all major matters, including settlement discussions. Notwithstanding anything “[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 under the Securities Act of a Notice of Assumption1933, as amended” herein stated, the Indemnified Party shall at all times have the right to fully participate in such defense at their own expense directly or through counsel; provided, however, that if the named parties to the action or proceeding include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct, the reasonable expense of separate counsel for the Indemnified Party shall be entitled paid by the Indemnifying Party. If no such notice of intent to employ counsel at its own expense dispute and defend is given by the Indemnifying Party, or if such diligent good faith defense is not being or ceases to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify conducted, the Indemnified Party for any amount paid or payable by such Indemnified Party in shall, at the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent expense of the Indemnifying Party, undertake the defense of (y) with counsel selected by the Indemnified Party has not provided the Indemnifying Party with notice of such claim Party), and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend compromise or settle any such Third Party Claim. If such Third Party Claim is one that by its nature cannot be defended solely by the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse Party, then the Indemnified Party for shall make available all reasonable costs information and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which assistance that the Indemnifying Party is obligated to indemnify under this Agreementmay reasonably request and shall cooperate with the Indemnifying Party in such defense.
Appears in 1 contract
Sources: Distribution Agreement
Third Party Claim. The indemnification obligation pursuant In the case of any Third Party Claim, if within ten (10) Business Days after receiving the Claim Notice the Indemnifying Party gives written notice to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, stating (A) notify that the Indemnifying Party from whom indemnification is sought (would be liable for indemnity under the “Indemnifying Party”) of the existence of that provisions hereof if such Third Party Claim and were valid, (B) transmit to that the Indemnifying Party a notice disputes and intends to defend against such claim and (a “Claim Notice”C) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control be solely responsible for all costs, expenses and liabilities incurred in connection with or otherwise relating to such claim, then counsel for the defense shall be selected by the Indemnifying Party (subject to the consent of the Indemnified Party, which consent shall not be unreasonably withheld), whereupon the Indemnifying Party shall not be required to make any payment to the Indemnified Party for the costs of its defense and settlement counsel in respect of such claim (Third Party Claim as long as the Indemnifying Party is conducting a “Notice of Assumption”).
(2) good faith and diligent defense; provided, that the Indemnified Party shall at all times have the right to fully participate in such defense at its own expense directly or through counsel. If the Indemnifying Party delivers a Notice assumes the defense in accordance with the preceding sentence, it shall have the right, with the consent of Assumption within the required notice periodIndemnified Party, which consent shall not be unreasonably withheld, to settle the Indemnifying portion of such Third Party shall assume control (Claim that is subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claimindemnification; provided, however, that the settlement (i) does not involve the imposition of an injunction or other equitable relief on the Indemnified Party, and (ii) expressly and unconditionally releases the Indemnified Party from all Liabilities with respect to such Third Party Claim (and all other claims arising out of the same or similar facts and circumstances), with prejudice. The Indemnifying Party shall keep the Indemnified Party fully apprised as to of the status of any Third Party Claim for which it has assumed the defense, shall furnish the Indemnified Party with all documents and information that such Indemnified Party reasonably requests, and shall consult with the Indemnified Party prior to acting on major matters, including settlement discussions. Notwithstanding any of the foregoing, the Indemnifying Party shall not have the right to assume control of the defense, and (ii) shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party, if the Third Party Claim which such Indemnifying Party shall obtain seeks to assume control of: (1) seeks non-monetary relief; (2) involves criminal or quasi-criminal allegations; (3) is one in which an Indemnifying Party and the prior written approval Indemnified Party are both named in the complaint, and joint representation by the same counsel would be inappropriate under applicable standards of ethical conduct; (4) could reasonably be expected to adversely affect the Taxes of the Indemnified Party before entering into any settlement of such for a taxable period (or portion thereof) beginning or ending after the Closing Date; or (5) involves a claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions for which an adverse determination would have a material and adverse effect on the Indemnified Party, ceasing ’s reputation or future business prospects. If notice of intent to dispute and defend against such claim or otherwise adversely impacting is not given by the Indemnified Party. The Indemnifying Party shall within the time period referenced above, or if such diligent good faith defense is not being or ceases to be liable for any legal fees or expenses incurred by conducted, then the Indemnified Party following may undertake the delivery defense of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ (with counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable selected by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption Party), and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend compromise or settle, such Third Party Claim (exercising reasonable business judgment) in its discretion. If such Third Party Claim is one that, by its nature, cannot be defended solely by the claim in such manner as it may deem appropriate. The Indemnifying Party, then the Indemnified Party shall make available all information and assistance that the Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs reasonably request, and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which shall cooperate with the Indemnifying Party is obligated in such defense. For the purpose of clarification, with respect to indemnify under litigation matters which involve multiple claims of which not all claims are entitled to indemnification hereunder, the indemnification procedures of this AgreementSection 9 shall apply solely to those claims entitled to indemnification hereunder.
Appears in 1 contract
Sources: Purchase and Sale Agreement (AquaVenture Holdings LTD)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each 5.7.1. Where an Indemnified Party has received Notice of any Claim or becomes aware of any matter which may result in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement Claim from any other Person (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
such Indemnified Person shall within 30 (1thirty) The Indemnified days of receiving such Notice or becoming aware of any Third Party shallClaim, with reasonable promptness after the Indemnified Party has give written notice of a Claim, (A) notify the such Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice in reasonable detail in light of the circumstances then known to the Indemnified Party (a “Third Party Claim Notice”) describing, in reasonable detail, ); provided that the nature failure of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if provide such notice shall not relieve the Indemnifying Party has received notice from of its obligations under Clause 5 of this Agreement.
5.7.2. Upon receipt of the Indemnified Third Party relating to any Claim at least five (5) days before that dateNotice, the Indemnifying Party shall notify be obligated to undertake necessary legal actions to defend the Claim or take such action as may be best suitable in the circumstances with counsel reasonably satisfactory to the Indemnified Party, at such Indemnifying Party’s sole expense. Notwithstanding the foregoing, the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim may, (a “Notice of Assumption”).
(2i) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense, retain separate counsel to participate in such defence or any negotiations or settlement thereunder or (ii) over in the event the Indemnifying Party fails to assume such defense within the period set out in Clause 5.7.3 (i) below, the Indemnified Party may assume the defense and settlement of the claim and diligently defend the claim; providedor compromise such Third Party Claim by itself, however, that in which case: (ia) the Indemnifying Party shall keep remain liable for the Indemnified Party fully apprised as to the status of the defense, costs and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement expenses of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Third Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement Claim including all court costs and payment of any claim if interim amounts; (xb) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend contest, settle, compromise or otherwise dispose of such Third Party Claim without the claim in such manner as it may deem appropriateconsent of the Indemnifying Party.
5.7.3. The Indemnifying Party shall promptly reimburse make the indemnity payment in cash (or such other manner agreed in writing between the Indemnified Party for all reasonable costs and Indemnifying Party) to the Indemnified Party upon occurrence of earlier of the following: (i) the Indemnifying Party failing to assume defence within 10 (ten) days from the receipt of the Third Party Claim Notice or such other period within which such defense ought to be assumed to comply with requirements mandated by the third party claimant’s notice (where the third party claimant is a Governmental Authority) or otherwise as required under Applicable Law; or (ii) the Indemnifying Party having assumed the defence of the Third Party Claim, where a payment obligation under a Third Party Claim becomes due and payable including pursuant to a judgement, order by any Governmental Authority or arbitral award, in each case, which is not subject to any stay or other legal suspension or postponement, or a settlement or compromise having been consummated. Provided however that during the process of defense of the Third Party Claim, if the Indemnified Party is required to incur any costs/expenses incurred (including but not limited to pursuant to a notice from any Governmental Authority or interim order passed by a court of law requiring the payment of whole or in part of the Third Party Claim), the Indemnifying Party shall immediately upon receipt of a notice from the Indemnified Party in this regard, remit the said amounts to the Indemnified Party, including attorneys’ feessubject to receipt of documents evidencing such amounts being payable, in connection therewith or otherwise discharge such Third Party Claim (as per the instructions of the Indemnified Party).
5.7.4. The Indemnifying Party agrees that it will not, without the prior written consent of the Indemnified Party: (i) make any payment to the extent it is relevant third party; (ii) consent to the entry of any judgment; (iii) enter into any settlement, with respect to any such Third Party Claim; and/or (iv) make any filings or written submission, whether independently or in response to any request or requirement to make such submission with any other third party including a claim for which Governmental Authority, with respect to the Indemnifying Third Party is obligated to indemnify under this AgreementClaim.
Appears in 1 contract
Sources: Subscription Agreement
Third Party Claim. The indemnification obligation pursuant to Section 8.1(bIf any of the Purchasers receives written notice of the assertion of any claim or demand by any Person who is not a Party or Affiliate of any Party (a “Third Party Claim”) for each Party in its capacity as a Service Provider and against any of the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, Purchasers with respect to Damages claimed which an Indemnity Claim is to be sought or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) which may be sought by a third party (that third-party claim or assertion, a “Claim”), are subject to any such Purchaser from the following terms and conditionsSeller:
(1a) The Indemnified Party shall, with Purchasers will give the Seller written notice thereof within a reasonable promptness after the Indemnified Party has time from receipt of notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) assertion of such claim or of the existence commencement of that Claim and (B) transmit to the Indemnifying Party a any claim, action or proceeding. Such notice (a “Claim Notice”) describing, in reasonable detail, shall describe the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen Third Party Claim in reasonable detail (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to including a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control copy of the defense Third Party Claim) and settlement shall indicate the estimated amount, if practicable, of such claim (a “Notice of Assumption”)the Loss that has been or may be sustained by the Purchasers.
(2b) If the Indemnifying Party delivers a Notice of Assumption within Seller notifies the required notice periodPurchasers that she accepts liability for such claim, the Indemnifying Party Purchasers, in consultation with the Seller, shall assume control (subject to Indemnified Party’s right to participate at its own expense) over enter into a settlement agreement with the defense third party claimant, and all costs and expenses for such settlement shall be for the account of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredSeller.
(3c) If the Indemnifying Party Seller notifies the Purchasers that she does not deliver a Notice accept liability for said claim, then the Purchasers and the Seller shall, at the expense of Assumption relating the Seller, cooperate with each other in good faith in defending against the claim or taking such other action as may be appropriate under the circumstances, taking into account the best interests of HB Holdco (or the HB Holdco Subsidiary, as appropriate) and advice of legal counsel.
(d) In the event that the Purchasers and the Seller disagree on the course of action to any claim within the required notice periodbe taken, the Indemnified Party matter shall be referred to the Claims Dispute Resolution process under Section 7.7 but in the meantime, the Purchasers shall have the right to defend handle the claim in such manner a way they deem appropriate taking into account the best interests of HB Holdco (or the HB Holdco Subsidiary, as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs ) and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreementadvice of legal counsel.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and Promptly after receipt by the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service ReceiverBuyer or ----------------- the Seller of notification of the assertion, in each caseor possible assertion, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served claim, action, suit, proceeding or demand with respect to which indemnification shall or may be claimed by the Buyer or the Seller pursuant to this Section 6 (the "THIRD PARTY CLAIM") (such Claim. Within fifteen recipient being referred to hereinafter as the "INDEMNITEE") the Indemnitee shall give written notice describing the Third Party Claim in reasonable detail (15an "INDEMNITY NOTICE") calendar days following receipt of notice from to the Indemnified Party relating to any Claim, but no later than five other party (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that dateherein, the Indemnifying Party shall notify "INDEMNITOR"). Failure by the Indemnified Party that Indemnitee to send the Indemnifying Party will assume control of the defense and settlement of such claim (a “Indemnity Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for release the Indemnitor from its
1. Neither the Indemnitor nor the Indemnitee shall adjust, compromise or settle any legal fees such claim, action, suit, proceeding or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to demand without the written consent of the Indemnifying Partyother, which consent shall not be unreasonably withheld. As to any Third Party Claim the defense of which has been assumed by the Indemnitor, (yi) the Indemnified Party has not provided Indemnitee shall cooperate fully in such defense as and to the Indemnifying Party with notice extent reasonably requested by the Indemnitor (such cooperation shall include the retention and, upon the Indemnitor's request, the provision to the Indemnitor of records and information that are reasonably relevant to such claim or demand and making employees available on a reasonable opportunity mutually convenient basis to respond thereto, or provide additional information and explanation of any material provided hereunder) and (zii) the time period within which Indemnitor shall not, subsequent to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to such assumption, be liable for any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and legal expenses incurred by Indemnified Partythe Indemnitee. In the event of any claim under this Section 6 for indemnification (whether or not in connection with a Third Party Claim), including attorneys’ feesthe Indemnitee shall promptly advise the Indemnitor in writing, in connection therewith reasonable detail, of the amount and circumstances surrounding said claim (which notice shall also be deemed to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreementbe an Indemnity Notice).
Appears in 1 contract
Sources: General Partnership Interest Purchase Agreement (HWCC Tunica Inc)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(i) for each Party If the claim or demand set forth in its capacity as the Notice of claim is a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed claim or demand asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness Company will have 15 calendar days after the Indemnified Party has notice date of a Claim, (A) notify receipt by the Party from whom indemnification is sought Company of the Notice of Claim (the “Indemnifying PartyNotice Date”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control Parties in writing of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If election by the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject Company to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Third Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval Claim on behalf of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of AssumptionParties; provided, however, that the Indemnified Party shall Company will be entitled to employ counsel at its own expense assume the defense of any such Third Party claim only if it unconditionally and irrevocably undertakes to indemnify all Indemnified Parties in respect thereof.
(ii) If the Company elects to defend a Third Party Claim on behalf of the Indemnified Parties, the Indemnified Parties will make available to the Company and their agents and representatives all records and other materials in their possession which are reasonably required in the defense of the Third Party Claim and the Company will pay all expenses payable in connection with the defense of the Third Party Claim as they are incurred.
(iii) In no event may the Company settle or compromise any Third Party Claim without the Indemnified Parties’ consent, which may not be unreasonably withheld; provided, however, that if a settlement is presented by the Company to the Indemnified Parties for approval, which settlement involves no payment by or liability of the Indemnified Parties or any restriction on the operation of their businesses or assets and includes releases of the Indemnified Parties from any and all liability in connection with such Third Party Claim, and the Indemnified Parties withhold their consent thereto, then any amount by which the final Losses (including reasonable attorneys’ fees and charges) resulting from the resolution of the matter exceeds the rejected settlement amount, plus attorneys’ fees incurred to such date, will be excluded from the amount covered by the indemnification provided for in this Agreement and shall be borne by the Indemnified Parties.
(iv) If the Company elects to defend a Third Party Claim, the Indemnified Parties will have the right to participate in the handling defense of the claim. The Indemnifying Third Party Claim, at the Indemnified Parties’ expense (and without the right to indemnification for such expense under this Agreement); provided, however, that the reasonable fees and expenses of counsel retained by the Indemnified Parties will be at the expense of the Company if (A) the use of the counsel chosen by the Company to represent the Indemnified Parties would present such counsel with a conflict of interest; (B) the parties to such proceeding include both Indemnified Parties and the Company and there may be legal defenses available to Indemnified Parties which are different from or additional to those available by the Company; (C) within 10 calendar days after being advised by the Company of the identity of counsel to be retained to represent Indemnified Parties, they shall have objected to the retention of such counsel for valid reasons (which shall be stated in a written notice to the Company), and the Company shall not be obligated have retained different counsel satisfactory to indemnify the Indemnified Party for any amount paid Parties; or payable by such Indemnified Party in the settlement of any claim if (xD) the Indemnifying Party has delivered Company shall have authorized the Indemnified Parties to retain a timely Notice of Assumption and such amount was agreed to without single separate counsel at the written consent expense of the Indemnifying PartyCompany, (y) such authorization to be made by the Indemnified Party has directors who are not provided the Indemnifying Party with notice designees of such claim and a reasonable opportunity to respond thereto, Purchaser or (z) the time period within which to deliver a Notice of Assumption has not yet expiredits Affiliates.
(3v) If the Indemnifying Party Company does not deliver elect to defend a Notice of Assumption relating to any claim within the required notice periodThird Party Claim, or does not defend a Third Party Claim in good faith, the Indemnified Party shall Parties will have the right, in addition to any other right or remedy it may have hereunder, at the sole and exclusive expense of the Company, to defend the claim in such manner as it may deem appropriate. The Indemnifying Third Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this AgreementClaim.
Appears in 1 contract
Sources: Preferred Stock Amendment and Warrant Issuance Agreement (Franklin Covey Co)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(a) for each If the Buyer becomes aware of any Third Party in its capacity as a Service Provider Claim the Buyer shall, and shall procure that the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditionsGroup Companies shall:
(1i) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claimas soon as reasonably practicable, but no later than five thirty (530) calendar days before give written notice to the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement Sellers of such claim (a “Notice of Assumption”).
(2) If Third Party Claim in accordance with Section 10.5 and thereafter keep the Indemnifying Party delivers a Notice of Assumption within Sellers informed throughout the required notice periodprocess, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) failure to do so by the Indemnifying Party Buyer shall keep only reduce the Indemnified Party fully apprised as Sellers’ liability if and to the status of extent such failure has prejudiced the defense, and Sellers’ rights or increased the Loss;
(ii) the Indemnifying make no admission of liability, agreement or settlement relating to such Third Party shall obtain Claim without the prior written approval of the Indemnified Party before entering into any settlement of Sellers (such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party consent shall not be liable for unreasonably withheld);
(iii) not take any legal fees action or expenses incurred by the Indemnified omitting to take any action which could reasonably be expected to have an adverse effect on any insurance policy under which any such Third Party following the delivery of a Notice of AssumptionClaim would be recoverable if such action had not been taken; provided, however, and
(iv) take any action that the Indemnified Sellers reasonably request to avoid, dispute, resist, appeal, compromise or defend such Third Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredClaim.
(3b) If The Buyer shall control the Indemnifying defense of any Third Party does not deliver a Notice of Assumption relating to any claim within the required notice periodClaim, the Indemnified Party acting in good faith. The Sellers shall have the right at their choice and cost to defend participate and give advice in the claim defense in relation to any negotiation, dispute or litigation relating to such Third Party Claim and the Buyer shall consult with the Sellers in such manner as it may deem appropriatedefense.
(c) The Buyer shall ensure that the Sellers are informed without undue delay of the developments of the Third Party Claim, and shall be provided with copies of any correspondence or documentation material to the negotiation, dispute or litigation, provided always that such disclosure is possible without substantially jeopardizing the outcome of such negotiation, dispute or litigation, or legal privilege in relation thereto. The Indemnifying In all events, the Parties shall cooperate in the defense against any asserted Third Party Claim.
(d) Should the Buyer not comply with this Section 10.12, the Sellers’ Liability shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith be reduced to the extent it is a claim for which such failure has increased the Indemnifying Party is obligated to indemnify under this AgreementLoss.
Appears in 1 contract
Third Party Claim. In the event of a Third-Party Claim, the party seeking indemnification ("TENDERING PARTY") shall tender the defense of such Third Party Claim to the party from whom INDEMNIFICATION IS SOUGHT ("NON-TENDERING PARTY"). The indemnification obligation pursuant to Section 8.1(bNon-Tendering Party shall, within ten (10) for each days after the receipt thereof, inform the Tendering Party in its capacity as a Service Provider and writing that the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that thirdNon-party claim or assertion, a “Claim”), are subject to the following terms and conditionsTendering Party will either:
(1I) The Indemnified ACCEPT THE TENDER OF THE DEFENSE WITHOUT A RESERVATION OF RIGHTS. If the Non-Tendering Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party agrees that the Indemnifying Third Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it Claim is a claim for which indemnification is provided FOR PURSUANT TO THE TERMS OF THIS AGREEMENT ("PROPER CLAIM"), the Indemnifying Non-Tendering Party shall accept the tender of the defense without a reservation of rights. In such an event the Non-Tendering Party shall control all aspects of the defense of such Third Party Claim and shall indemnify the Tendering Party in accordance with this Article VI.
(II) ACCEPT THE TENDER OF THE DEFENSE WITH A RESERVATION OF RIGHTS. If the Non-Tendering Party questions whether the Third Party Claim is obligated a Proper Claim, the Non-Tendering Party may accept the tender of the defense with a reservation of rights. In such an event, the Non-Tendering Party shall submit such Third Party Claim to arbitration immediately in order to determine whether it is a Proper Claim. While the arbitration is pending, the Non-Tendering Party shall control all aspects of the defense of such Third Party Claim. If the decision of the arbitrator(s) is that it is:
(A) a Proper Claim, and the Third Party Claim is still pending, the Non-Tendering Party shall continue the defense of such Third Party Claim and shall defend, indemnify under and hold the Tendering Party harmless in accordance with this AgreementArticle VI;
(B) a Proper Claim, but the Third Party Claim has already been concluded, the Non-Tendering Party shall indemnify and hold the Tendering Party harmless in accordance with this Article VI;
(C) a claim for which indemnification is not provided for pursuant to the terms of THIS AGREEMENT ("IMPROPER CLAIM"), and the Third Party Claim is still pending, the Non-Tendering Party shall return all aspects of the defense of such Third Party Claim immediately to the Tendering Party. In such an event, the Tendering Party shall assume the control of all aspects of the defense of such Third Party Claim immediately and shall reimburse the Non-Tendering Party for all costs and Expenses (including, but not limited to, reasonable attorneys fees) incurred by the Non-Tendering Party in the defense of such Third Party Claim; or
(D) an Improper Claim, but the Third Party Claim has already been concluded, the Tendering Party shall reimburse the Non-Tendering Party for all costs and expenses (including, but not limited to reasonable attorneys fees) incurred by the Non-Tendering Party in the defense of such Third Party Claim and shall reimburse the Non-Tendering Party for all amounts paid by the Non-Tendering Party for judgments or settlements relating to such Third Party Claim.
Appears in 1 contract
Sources: Purchase Agreement (Novex Systems International Inc)
Third Party Claim. The indemnification obligation pursuant If the facts, matters or circumstances that may give rise to Section 8.1(b) for each Party in its capacity a Claim occur or arise as a Service Provider and the indemnification obligation pursuant result of or in connection with a claim by or a liability to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against Third Party (a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:Purchaser shall (or, as appropriate, shall procure that the Target shall):
(1a) The Indemnified inform the Seller within forty-five (45) days (or any shorter period of time if requested by applicable Law, action or claim) after it has obtained knowledge of such Third Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, being specified that the Seller shall do its best efforts to inform the Seller within fifteen (A15) notify days after it has obtained knowledge of such Third Party Claim;
(b) not make any admissions of liability in respect of or compromise or settle the Third Party from whom indemnification is sought Claim without the prior written consent of the Seller, save as otherwise agreed in this Clause 12.2.7;
(c) if the “Indemnifying Party”Seller agrees to indemnify and that the Third Party Claim remains potentially covered by the Available Indemnification Amount at that date, the Purchaser within forty-five (45) days (or any shorter period of time if requested by applicable Law, action or claim) of the existence notice from the Purchaser, at the written request of Seller, the Purchaser shall cause the Target to give the required powers of attorney to the Seller to enable it to control the defence of the Third Party Claim, at its own cost, and the Purchaser shall cooperate and act, and shall cause the Target to cooperate and act, in compliance with the Seller’s instructions in connection with the defence of the Third Party Claim; in such case, the Seller will, at the request of the Purchaser, provide the Purchaser with an update of the relevant Third Party Claim;
(d) if the Seller does not agree to indemnify the Purchaser within forty-five (45) days (or any shorter period of time if requested by applicable Law, action or claim) of the notice from the Purchaser, or if the Third Party Claim exceeds by more than 20% the Available Indemnification Amount at that date the Purchaser shall have control of the defence of the Third Party Claim provided that it will allow the Seller and its advisers to have reasonable access to relevant documents and information in connection with the relevant Claim and will at the request of the Seller provide the Seller with an update of the relevant Third Party Claim; being specified that the control of the defense by the Purchaser shall not prevent the Purchaser from pursuing a Third Party Claim for indemnification against the Seller in accordance with the terms of this Agreement.
(Be) transmit to During the Indemnifying abovementioned applicable period between the Purchaser notification of the Third Party a notice (a “Claim Notice”) describing, in reasonable detailand the Seller's answer, the nature of the Claim, and copies of Purchaser may take any papers served action with respect to such Claim. Within fifteen claim which is necessary to protect against further damage or default.
(15f) calendar days following receipt In any case whatsoever the (i) Parties agree to cooperate with each other and act reasonably in the interest of notice from the Indemnified Target in the defense of Third Party relating Claims, (ii) the Party who controls the defense of the Third Party Claim agrees to any Claim, but no later than five (5) calendar days before reasonably consider the date on which any response advice of the other Party as to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim claim, and (a “Notice of Assumption”).
(2iii) If the Indemnifying Party delivers a Notice of Assumption within who do not control the required notice period, defense shall have the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate participate, at its own expense, in such defense subject to local law governing such dispute.
(g) over In the defense and event that an offer of settlement of a Third Party Claim is made by or to any Party (a "Settlement Offer"), the claim Party that receives or proposes such Settlement Offer shall notify the other Party promptly and diligently defend reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related supporting documentation reasonably required to enable the claim; providedother Party to assess the relative merits of the Settlement Offer.
(h) At the reasonable request of either the Seller or the Purchaser the Parties will consult in good faith with respect to any such Settlement Offer. Each party shall then determine in its own business judgment whether or not to consent to the Settlement Offer.
(i) In the event that a Settlement Offer is received which the Purchaser, howeverbut not the Seller, is willing to accept, and if the Settlement amount remains potentially covered by the Available Indemnification Amount at that date the Seller may elect to continue the defence of such Third Party Claim at its own expense, in which case the settlement will not be agreed upon and any sums which are to be eventually supported by the Target or the Purchaser under such Third Party Claim shall be the lesser of: (i) the Indemnifying Loss determined as if the Third Party shall keep Claim had been settled in accordance with the Indemnified Party fully apprised as proposed Settlement Offer that the Purchaser was willing to the status of the defense, accept; and (ii) the Indemnifying Party shall obtain Loss actually suffered by the prior written approval Purchaser or the Target, taking into account the final determination of the Indemnified Third Party before entering into any settlement Claim.
(j) In the event that a Settlement Offer is received which the Seller, but not the Purchaser, is willing to accept, and subsequently the Purchaser or Target elects to continue the defense of such claim asserting any liability against Third Party Claim, the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party Seller shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate Loss in the handling excess of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredproposed Settlement Offer.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant In the event the facts giving rise to Section 8.1(b) the claim for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Article 8 shall involve any action or threatened claim or demand by a any third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after against the Indemnified Party has (a "Third Party Claim"), within the earlier of, as applicable, ten (10) days after receiving notice of the filing of a Claim, lawsuit or thirty (A30) notify the Party from whom indemnification is sought (the “Indemnifying Party”) days after receiving notice of the existence of that a claim, demand, suit or proceeding (each a "Claim") giving rise to the claim for indemnification, the Indemnified Party shall send written notice of such Claim and (B) transmit to the Indemnifying Party a notice (a “the "Claim Notice”) describing, in reasonable detail, the nature "). The failure of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if give the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, Notice shall not release the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claimfrom liability under this Article 8; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses losses incurred by the Indemnified Party following which would not have been incurred but for the delay in the delivery of a Notice of Assumption; providedof, howeveror the failure to deliver, that the Indemnified Claim Notice. Except as set forth below, the Indemnifying Party shall be entitled to employ counsel defend such Claim in the name of the Indemnified Party at his or its own expense to participate in the handling and through counsel of the claimhis or its own choosing. The Indemnifying Party shall not be obligated to indemnify give the Indemnified Party for any amount paid or payable by such notice in writing within ten (10) days after receiving the Claim Notice from the Indemnified Party in the settlement event the Claim is one involving an instituted suit or proceeding, or otherwise within thirty (30) days, of any claim if (x) his or its intent to do so. If the Indemnifying Party has delivered chooses to defend or prosecute a timely Notice Third Party Claim, all the Indemnified Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of Assumption records and information that are reasonably relevant to such amount was agreed Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent, which consent of shall not be unreasonably withheld, delayed or conditioned. The Indemnified Party may elect, by notice in writing to the Indemnifying Party, (y) the Indemnified Party has not provided to continue to participate through his or its own counsel, at his or its expense, but the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend control the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse defense of the Claim with counsel reasonably acceptable to the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to . In the extent it is a claim for which event that the Indemnifying Party is obligated controlling the defense of the Claim and shall have negotiated a settlement thereof, which proposed settlement is final and unconditional as to indemnify under this Agreementthe parties thereto and contains an unconditional release of the Indemnified Party, without the Indemnified Party being liable for damages of any kind or nature or being otherwise required to pay any amount of money to any third party and does not include the imposition of any restrictions on the part of the Indemnified Party or require that the Indemnified Party make an admission of guilt or liability or deliver a confession of judgment, or any other non-financial obligation which, in the reasonable ASSET PURCHASE AGREEMENT - PAGE 26 judgment of the Indemnified Party, renders such settlement unacceptable, the Indemnified Party shall consent to such settlement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Home Interiors & Gifts Inc)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(bShould any claim be made, or suit or proceeding ------------------ (including, without limitation, a binding arbitration or an audit by any taxing authority) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) be instituted by a third party against an Indemnitee which, if prosecuted successfully, would be a matter for which the Indemnitee is entitled to indemnification under Section 1 hereof (that third-party claim or assertion, a “"Third Party Claim”"), are the ------------------- obligations and liabilities of the parties hereunder with respect to such Third Party Claim will be subject to the following terms and conditions:
(1a) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has Indemnitee shall give Cybernet written notice of a Claimany such Third Party Claim promptly after receipt by Indemnitee of actual notice thereof, (A) notify and Cybernet will undertake the defense thereof by representatives of its own choosing. If Cybernet undertakes the defense of such claim, Cybernet will have the exclusive right to defend, contest and litigate the Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies the exclusive right, subject to the terms of Section 3(b) below, in its discretion, in good faith, and upon the advice of counsel, to settle any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt matter, either before or after the initiation of notice from the Indemnified Party relating to any Claimlitigation, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at such time and upon such terms as Cybernet can and will satisfy and as it deems fair and reasonable; provided that at least five (5) 10 days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control prior written notice of the intended settlement must be provided to Indemnitee. If, however, Cybernet fails or refuses to undertake the defense and of such claim within 30 business days after written notice of such claim has been given to Cybernet by Indemnitee, Indemnitee will have the right to undertake the defense, compromise and, settlement of such claim (a “Notice with counsel of Assumption”)its own choosing.
(2b) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over Indemnitee and Cybernet will cooperate with each other in all reasonable respects in connection with the defense and of any Third Party Claim, including making available records relating to such claim as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witness in any proceeding relating to such claim.
(c) In connection with any settlement of a Third Party Claim negotiated by Cybernet, Indemnitee will not be required to take any of the claim and diligently defend the claim; provided, however, that following actions:
(i) Enter into any settlement that does not include the Indemnifying Party shall keep delivery by the Indemnified Party fully apprised as claimant or plaintiff to Indemnitee of an unconditional release from all liability with respect to the status of the defense, and Third Party Claim.
(ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering Enter into any settlement of such claim asserting that requires Indemnitee to take any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of affirmative action as a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling condition of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredsettlement.
(3iii) If Consent to the Indemnifying Party entry of judgment that does not deliver include a Notice full dismissal of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreementlitigation or proceedings against Indemnitee with prejudice.
Appears in 1 contract
Sources: Partnership Agreement (Cybernet Internet Services International Inc)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(bIf any of the Purchasers receives written notice of the assertion of any claim or demand by any Person who is not a Party or Affiliate of any Party (a “Third Party Claim”) for each Party in its capacity as a Service Provider and against any of the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, Purchasers with respect to Damages claimed which an Indemnity Claim is to be sought or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) which may be sought by a third party (that third-party claim or assertion, a “Claim”), are subject to any such Purchaser from the following terms and conditionsSeller:
(1a) The Indemnified Party shall, with Purchasers will give the Seller written notice thereof within a reasonable promptness after the Indemnified Party has time from receipt of notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) assertion of such claim or of the existence commencement of that Claim and (B) transmit to the Indemnifying Party a any claim, action or proceeding. Such notice (a “Claim Notice”) describing, in reasonable detail, shall describe the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen Third Party Claim in reasonable detail (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to including a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control copy of the defense Third Party Claim) and settlement shall indicate the estimated amount, if practicable, of such claim (a “Notice of Assumption”)the Loss that has been or may be sustained by the Purchasers.
(2b) If the Indemnifying Party delivers a Notice of Assumption within Seller notifies the required notice periodPurchasers that it accepts liability for such claim, the Indemnifying Party Purchasers, in consultation with the Seller, shall assume control (subject to Indemnified Party’s right to participate at its own expense) over enter into a settlement agreement with the defense third party claimant, and all costs and expenses for such settlement shall be for the account of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredSeller.
(3c) If the Indemnifying Party Seller notifies the Purchasers that it does not deliver a Notice accept liability for said claim, then the Purchasers and the Seller shall, at the expense of Assumption relating the Seller, cooperate with each other in good faith in defending against the claim or taking such other action as may be appropriate under the circumstances, taking into account the best interests of LB Holdco (or the LB Holdco Subsidiary, as appropriate) and advice of legal counsel.
(d) In the event that the Purchasers and the Seller disagree on the course of action to any claim within the required notice periodbe taken, the Indemnified Party matter shall be referred to the Claims Dispute Resolution process under Section 7.7 but in the meantime, the Purchasers shall have the right to defend handle the claim in such manner a way they deem appropriate taking into account the best interests of LB Holdco (or the LB Holdco Subsidiary, as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs ) and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreementadvice of legal counsel.
Appears in 1 contract
Third Party Claim. The In the event of a Third-Party Claim, the party seeking indemnification obligation pursuant to Section 8.1(b("Tendering Party") for each shall tender the defense of such Third Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject Claim to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party party from whom indemnification is sought (the “Indemnifying "Non-Tendering Party”"). The Non-Tendering Party shall, within ten (10) days of the existence receipt thereof, inform the Tendering Party in writing that the Non-Tendering Party will either:
(i) Accept the Tender of the Defense Without a Reservation of Rights. If the Non-Tendering Party agrees that the Third Party Claim and (B) transmit is a claim for which indemnification is provided for pursuant to the Indemnifying Party a notice terms of this Agreement (a “Claim Notice”) describing, in reasonable detail"Proper Claim"), the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Non-Tendering Party shall notify accept the Indemnified Party that the Indemnifying Party will assume control tender of the defense and settlement without a reservation of rights. In such an event the Non-Tendering Party shall control all aspects of the defense of such claim (a “Notice of Assumption”)Third Party Claim and shall indemnify the Tendering Party in accordance with this Article XI.
(2ii) Accept the Tender of the Defense With a Reservation of Rights. If the Indemnifying Non-Tendering Party delivers questions whether the Third Party Claim is a Notice of Assumption within the required notice periodProper Claim, the Indemnifying Non-Tendering Party may accept the tender of the defense with a reservation of rights. In such an event, the Non-Tendering Party shall assume submit such Third Party Claim to arbitration immediately in order to determine whether it is a Proper Claim. While the arbitration is pending, the Non-Tendering Party shall control (subject to Indemnified Party’s right to participate at its own expense) over all aspects of the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Third Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of AssumptionClaim; provided, however, that the Indemnified Tendering Party shall be entitled to employ counsel at its own expense have a reasonable right to participate in decisions with respect to defense of Third Party Claims during the handling period the arbitration is pending. If the decision of the claim. The Indemnifying arbitrator(s) is that it is:
(A) a Proper Claim, and the Third Party Claim is still pending, the Non-Tendering Party shall not be obligated to indemnify continue the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice defense of such claim Third Party Claim and a reasonable opportunity to respond theretoshall defend, or (z) indemnify and hold the time period within which to deliver a Notice of Assumption has not yet expired.Tendering Party harmless in accordance with this Article XI;
(3B) If a Proper Claim, but the Indemnifying Third Party does not deliver a Notice of Assumption relating to any claim within the required notice periodClaim has already been concluded, the Indemnified Non-Tendering Party shall have indemnify and hold the right to defend the claim Tendering Party harmless in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is accordance with this Article XI;
(C) a claim for which indemnification is not provided for pursuant to the Indemnifying terms of this Agreement ("Improper Claim"), and the Third Party Claim is obligated still pending, the Non-Tendering Party shall return all aspects of the defense of such Third Party Claim immediately to the Tendering Party. In such an event, the Tendering Party shall assume the control of all aspects of the defense of such Third Party Claim immediately and shall reimburse the Non-Tendering Party for all costs and expenses (including, but not limited to, reasonable attorneys fees) incurred by the Non-Tendering Party in the defense of such Third Party Claim; or
(D) an Improper Claim, but the Third Party Claim has already been concluded, the Tendering Party shall reimburse the Non-Tendering Party for all costs and expenses (including, but not limited to reasonable attorneys fees) incurred by the Non-Tendering Party in the defense of such Third Party Claim and shall reimburse the Non-Tendering Party for all amounts paid by the Non-Tendering Party for judgments or settlements relating to such Third Party Claim.
(iii) Reject the Tender of the Defense. If the Non-Tendering Party decides that the Third Party Claim is an Improper Claim, the Non-Tendering Party shall reject the tender of the defense. In such an event, the Non-Tendering Party shall submit such Third Party Claim to arbitration immediately in order to determine whether it is a Proper Claim. While the arbitration is pending, the Tendering Party shall control all aspects of the defense of such Third Party Claim. If the decision of the arbitrator(s) is that it is:
(A) a Proper Claim, and the Third Party Claim is still pending, the Tendering Party shall transfer the control of all aspects of the defense of such Third Party Claim to the Non-Tendering Party. The Non-Tendering Party shall assume the defense of such Third Party Claim immediately and shall reimburse the Tendering Party for all costs and expenses (including, but not limited to, reasonable attorneys fees) incurred by the Tendering Party in the defense of such Third Party Claim and shall defend, indemnify under and hold the Tendering Party harmless in accordance with this AgreementArticle XI;
(B) a Proper Claim, but the Third Party Claim has already been concluded, the Non-Tendering Party shall indemnify and hold the Tendering Party harmless in accordance with this Article XI and shall reimburse the Tendering Party for all costs and expenses (including, but not limited to, reasonable attorneys fees) incurred by the Tendering Party in the defense of such Third Party Claim and shall defend, indemnify and hold the Tendering Party harmless in accordance with this Article XI;
(C) an Improper Claim, and the Third Party Claim is still pending, the Tendering Party shall continue to control all aspects of the defense of such Third Party Claim; or
(D) an Improper Claim, but the Third Party Claim has already been concluded, the Tendering Party shall bear all losses incurred by the Tendering Party relating to such Third Party Claim.
Appears in 1 contract
Third Party Claim. The indemnification If the Claim in question is a result of or is in connection with a claim by or liability to a Third Party (a “Third Party Claim”) then:
(a) the Purchaser shall conduct, and shall procure that the relevant Group Company conducts, the defense of the Third Party Claim diligently and in good faith using all reasonable means and defenses available to it and taking into account the interests of the Group Companies, provided that the Purchaser shall have no obligation pursuant to Section 8.1(buse all recourses and appeals available in the Third Party Claim. Upon the Sellers’ Agent’s prior written request, the Purchaser shall give, and shall procure that the relevant Group Company gives, to the Sellers’ Agent the opportunity (at its own expenses) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, comment with respect to Damages claimed the defense of the Third Party Claim and shall take such comments into account when conducting the defense, provided that such requests are not, or, in the reasonable opinion of the Purchaser, likely to be, against the best interests of the Group Companies. The Purchaser or asserted the relevant Group Company shall keep the Sellers’ Agent reasonably informed of the progress of any Third Party Claim and its defense and shall promptly provide the Sellers’ Agent with copies of all material notices, communications and filings (including court papers). Upon the Sellers’ Agent’s written request, the Purchaser shall make, and shall procure that the relevant Group Company makes, any counterclaim against a person claiming indemnification any Person asserting such Third Party Claim or any cross-claim against any other Person which may be liable, provided that, should the Purchaser be of the opinion that the interest of the Purchaser or the Group Companies would be better served without such counterclaim or cross-claim, such Sellers’ Agent’s written request shall cause the Sellers’ Agent to (i) fully acknowledge their liability under this Agreement the Third Party Claim, (an “Indemnified Party”ii) take control of and conduct the Third Party Claim at its own expenses and (iii) be fully liable (i.e. the limitations set forth in Articles 14.7.3 and 14.7.4 shall not apply) for any Loss that may be incurred or suffered by a third party the Purchaser or any Group Companies in connection with such Third Party Claim ;
(that third-party claim or assertion, a “Claim”), are b) subject to the Sellers having acknowledged their liability under such Claim, the Third Party Claim shall not be compromised, disposed of or settled without the prior written consent of the Sellers’ Agent, which consent may not be unreasonably withheld or delayed. Failure by the Sellers’ Agent to consent to any proposed settlement of any Third Party Claim within a period of five (5) Business Days following terms such proposal being notified to the Sellers’ Agent, shall cause the Sellers’ Agent to (i) take control of and conditions:conduct the Third Party Claim at its own expenses and (ii) be fully liable (i.e. the limitations set forth in Articles 14.7.3 and 14.7.4 shall not apply) for any Loss that may be incurred or suffered by the Purchaser or any Group Companies in connection with such Third Party Claim;
(1c) The Indemnified Party the Sellers’ Agent shall, with reasonable promptness after the Indemnified subject to (i) having acknowledged their liability under such Third Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (Bii) transmit to having served notice on the Indemnifying Party Purchaser, within a notice five (a “Claim Notice”5) describing, in reasonable detail, Business Days period from the nature receipt of the Claim, and copies that it desires to conduct the defense of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Third Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest such Third Party Claim or liability (including, without limitation, making counterclaims or other claims against Third Parties) in the handling name of and on behalf of the claim. The Indemnifying relevant Group Company and to have the conduct of any related proceedings, negotiations or appeals, provided that the Seller’s Agent shall always exercise its rights under this Article 14.5 with moderation, in good faith and taking into account the best interests of the Group Companies, and provided further that if the Sellers’ Agent elects to conduct the defense of a Third Party Claim, the limitations set forth in Articles 14.7.3 and 14.7.4 shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredapply.
(3d) If Failure by the Indemnifying Party does not deliver a Notice Purchaser to comply with the provisions of Assumption relating to any claim within the required notice period, the Indemnified Party this Article 14.5 shall have no consequence on the right ability of the Purchaser to defend make a valid Claim, and may be sanctioned solely by the claim in payment of damages to the Sellers, insofar as the latter are able to prove that such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse failure caused direct damages to the Indemnified Party for all reasonable costs Sellers, and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith then only to the extent it is a claim for which of the Indemnifying Party is obligated to indemnify under this Agreementamount of the damages thus established.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by If a third party (that third-party including any Competent Authority) asserts a claim or assertion, against an Indemnified Party which might result in an indemnification liability hereunder on the part of an Indemnifying Party (a “Third Party Claim”), are subject to the following terms and conditionsshall apply in addition to clause 5.3:
(1) The the Indemnified Party shall, with reasonable promptness after as soon as reasonably practicable, notify the Indemnifying Party of any such Third Party Claim;
(2) the Indemnified Party has notice of a Claimshall, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit as soon as reasonably practicable after receipt by it, provide to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature copy of the Claim, Third Party Claim or demand and copies of any papers served with respect to such Claim. Within fifteen all time sensitive documents;
(153) calendar days following receipt of notice from the Indemnified Party relating shall not unreasonably do anything which prejudices or may reasonably be expected to any Claim, but no later than five (5) calendar days before prejudice the date on which any response to a complaint or summons is due if ability of the Indemnifying Party has received notice from to defend such Third Party Claim successfully;
(4) no settlements, acknowledgements, admissions of liability or waivers shall be made by either the Indemnified Party relating to any Claim at least five (5) days before that date, or the Indemnifying Party shall notify without the Indemnified Party that the Indemnifying Party will assume control prior written consent of the defense and settlement of such claim other Party (a “Notice of Assumption”which consent shall not be unreasonably withheld or delayed).; and
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i5) the Indemnifying Party shall keep have the right, at its expense, to participate in but not control the negotiation, settlement or defence of the Third Party Claim, which control shall rest at all times with the Indemnified Party, unless the Indemnifying Party fully apprised as to the status irrevocably assumes control, in writing, of the defensenegotiation, and settlement or defence of the Third Party Claim, in which case:
(iia) the Indemnifying Party may assume such control at its expense through counsel of its choice and shall obtain reimburse the prior written approval Indemnified Party for all of the Indemnified Party before entering into any settlement Party’s out-of-pocket expenses incurred as a result of such claim asserting assumption of control; and
(b) the Indemnified Party shall allow the Indemnifying Party to participate in all negotiations and correspondence with such third party and shall conduct proceedings in respect of such Third Party Claim in accordance with the Indemnifying Party’s instructions provided that the Indemnified Party shall continue to have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf (provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its expense or unless the named parties to any liability against action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences), in which case the fees and disbursements of such counsel shall be paid by the Indemnifying Party).
(6) In order to enable the Indemnifying Party to properly assess the benefits of the Third Party Claim and the chances of any litigation, and to proceed with the litigation, the Indemnified Party shall, upon the Indemnifying Party’s reasonable request during normal business hours and upon reasonable notice, without undue delay furnish copies of all relevant information, grant the right to inspect the books and the documents and allow interviews of the employees of the Indemnified Party, imposing any obligations or restrictions on provided that the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall keep business and trade secrets and other confidential information confidential and shall not be liable use these secrets for any legal fees purpose other than that contemplated under this clause (1).
(7) If, having elected to assume control of the negotiation, settlement or expenses incurred by defence of the Indemnified Third Party following Claim, the delivery of a Notice of Assumption; providedIndemnifying Party thereafter fails to conduct such negotiation, howeversettlement or defence with reasonable diligence, that then the Indemnified Party shall be entitled to employ counsel at its own expense to participate in assume such control and the handling of the claim. The Indemnifying Party shall not be obligated to indemnify bound by the results obtained by the Indemnified Party for with respect to such Third Party Claim.
(8) If any amount paid or payable by Third Party Claim is of a nature such that the Indemnified Party in is required by Applicable Law or any Order, to make a payment to any person with respect to the Third Party Claim before the completion of settlement of any claim if (x) negotiations or related legal proceedings, as the case may be, then the Indemnified Party may make such payment and the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without shall, promptly after demand by the written consent of the Indemnifying Indemnified Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which such a payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, including attorneys’ feesthe Indemnified Party shall, in connection therewith promptly after receipt of the difference from the party to whom the payment was made, pay the amount of such difference to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this AgreementParty.
Appears in 1 contract
Sources: Agreement for the Purchase of Shares (Visteon Corp)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each In the case of any Third Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service ReceiverClaim, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness if within [***] after the Indemnified Party has receiving notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that dateclaim for indemnification, the Indemnifying Party shall notify (i) gives written notice to the Indemnified Party stating that such Indemnifying Party would be liable in the amount of such claim if such claim were valid and that such Indemnifying Party disputes and intends to defend against such Third Party Claim at its or their own cost and expense and (ii) provides reasonable assurance to such Indemnified Party that such indemnification will be paid fully and promptly if required and such Indemnified Party will not incur cost or expense during the proceeding, then counsel for the defense shall be selected by the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to the consent of the Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim, which consent shall not be unreasonably withheld); provided, however, that (i) the assumption of defense of any such matters by the Indemnifying Party shall relate solely to the Third Party Claim that is subject or potentially subject to indemnification. If the Indemnifying Party assumes such defense in accordance with the preceding sentence, they shall have the right, with the consent of such Indemnified Party, which consent shall not be unreasonably withheld, to settle all indemnifiable matters related to such Third Party claims. The Indemnifying Party shall keep the Indemnified Party fully apprised as to of the status of the defenseclaim and any resulting suit, and (ii) the Indemnifying Party proceeding or enforcement action, shall obtain the prior written approval of furnish the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by with all documents and information that the Indemnified Party following shall reasonably request and shall consult with the delivery of a Notice of AssumptionIndemnified Party prior to acting on all major matters, including settlement discussions. Notwithstanding anything herein stated, the Indemnified Party shall at all times have the right to fully participate in such defense at their own expense directly or through counsel; provided, however, that if the named parties to the action or proceeding include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct, the reasonable expense of separate counsel for the Indemnified Party shall be entitled paid by the Indemnifying Party. If no such notice of intent to employ counsel at its own expense dispute and defend is given by the Indemnifying Party, or if such diligent good faith defense is not being or ceases to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify conducted, the Indemnified Party for any amount paid or payable by such Indemnified Party in shall, at the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent expense of the Indemnifying Party, undertake the defense of (y) with counsel selected by the Indemnified Party has not provided the Indemnifying Party with notice of such claim Party), and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend compromise or settle any such Third Party Claim. If such Third Party Claim is one that by its nature cannot be defended solely by the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse Party, then the Indemnified Party for shall make available all reasonable costs information and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which assistance that the Indemnifying Party is obligated to indemnify under this Agreementmay reasonably request and shall cooperate with the Indemnifying Party in such defense.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(a) In the event any claim for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Article V is based on a claim asserted by a third party (that third-party claim or assertioni.e., a Person other than a party hereto or its Affiliates, or agents) (a “Third-Party Claim”), are subject the party seeking indemnification shall give prompt written notice to such other party of the Third-Party Claim, which notice shall specify in reasonable detail the basis of such claim and the facts pertaining thereto, and indicating the sections of this Agreement allegedly breached to the following terms extent determinable which are the basis for such claim and conditions:the best estimate of the amount to the extent determinable or estimable as of such notice date of the Damages that has been or may be suffered by the Indemnified Party; provided that the failure to so notify any Indemnifying Party shall not relieve such Indemnifying Party of its obligations hereunder except to the extent such failure shall have prejudiced such Indemnifying Party.
(1b) The Indemnified Party shall, with reasonable promptness after In the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies event of any papers served with respect to such Third-Party Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify have the right, exercisable by written notice to the Indemnified Party that within thirty (30) days of receipt of a Claims Notice to assume and conduct the defense of the underlying Third-Party Claim with counsel selected by the Indemnifying Party will and reasonably satisfactory to the Indemnified Party; provided, that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assume control of the defense, which, notwithstanding the foregoing, shall be borne by the Indemnifying Party). Notwithstanding the foregoing, the Indemnifying Party shall not have the right to assume control of the defense of any Third-Party Claim and settlement shall pay the reasonable fees and out-of-pocket expenses of a single counsel retained by all such claim (a “Notice of Assumption”).
(2) If the Indemnifying Indemnified Parties with respect to such Third-Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that Claim if: (i) the Indemnifying Party shall keep does not conduct the Indemnified Party fully apprised as to the status defense of the defense, and Third-Party Claim with reasonable diligence; or (ii) the Third-Party Claim seeks non-monetary, equitable or injunctive relief, (ii) alleges violations of criminal law, or (iii) includes as the named parties in any such Third-Party Claim both an Indemnified Party and an Indemnifying Party, and either a defense is available to an Indemnified Party that is not available to an Indemnifying Party shall obtain or applicable ethical guidelines provide that, in either case, it would be inappropriate to have the prior written approval of same counsel represent both parties. If the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall has assumed such defense as provided in this Section 5.5(b), the Indemnifying Party will not be liable for any legal fees or expenses subsequently incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in connection with the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice defense of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) claim. If the Indemnifying Party does not deliver a Notice assume the defense of Assumption relating to any claim within the required notice periodThird-Party Claim in accordance with this Section 5.5(b), the Indemnified Party shall have the right may continue to defend such claim at the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which cost of the Indemnifying Party is obligated to indemnify under this Agreementand the Indemnifying Party may still participate in, but not control, the defense of such Third-Party Claim at the Indemnifying Party’s sole cost and expense.
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant 8.8.1. If a matter or circumstance that may give rise to Section 8.1(ba Claim against the Sellers under this Agreement is a result of or in connection with a Third Party Claim and the Buyer becomes aware of it (provided that at least one member of the Management Board of the Company nominated by the Buyer or any member of the management board of the Buyer shall become actually aware of such matter or circumstance. For the period after the Seller 1 is no longer the CEO of the Company, the Buyer shall instruct the CEO of the Company to inform the management board on the Claims exceeding deminimis amount), in order to maintain the right to bring a Claim in relation to such Third Party Claim against the Sellers:
(a) for each the Buyer shall procure that either the Buyer or the Group Company notify the Sellers in writing and without unreasonable delay of such Third Party in Claim not later than within 60 (sixty) Business Days after the date the Buyer and/or the Group Company became aware of such Third Party Claim;
(b) the Buyer shall give the Sellers or their duly authorised representatives reasonable access to the personnel of the Buyer and the Group Company, and to any items, relevant premises, accounts, documents and records which are reasonably relevant to such Third Party Claim and are within the possession or control of the Buyer and/or the Group Company to enable the Sellers and its capacity duly authorised representatives to investigate the Third Party Claim and to examine and take copies or photocopies thereof;
(c) the Buyer shall take actions as a Service Provider reasonable person would take in such a position to avoid, dispute, resist, appeal or defend against such Third Party Claim, including actions which are reasonably required to secure the required evidence, object the Third Party Claim and otherwise defend against the indemnification obligation pursuant Third Party Claim. If requested by the Sellers, subject to Section 8.1(c) for each party in the Sellers indemnifying the Buyer against all relevant losses related to such Third Party Claim, the Buyer shall allow the Sellers, at their own cost and expense, to participate directly and/or through its capacity as a Service Receiverrepresentatives or advisers, in each caseany negotiations, proceedings or litigation relating to the Third Party Claim, provided that the Sellers shall consider reasonable input/requests from the Buyer; and
(d) to the extent permitted by the applicable Laws, the Buyer will involve the Sellers in the litigation with regard to the Third Party Claim as third parties (in Lithuanian – tretieji asmenys) under the Civil Procedure Code of the Republic of Lithuania or in similar capacity if the litigation of the Third Party Claim is taking place not in Lithuanian courts.
8.8.2. The Buyer shall put its best efforts to ensure that the Sellers are notified in advance without any unreasonable delay about the Buyer’s intention with respect to Damages claimed admission of liability, execution of the agreement or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim compromise with any person, body or assertion, a “Claim”), are subject authority in relation to the following terms and conditions:
(1) Third Party Claim. The Indemnified Buyer shall seek an approval by the Sellers of the proposed admission of liability, execution of the agreement or compromise with any person, body or authority in relation to the Third Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, which shall not be unreasonably withheld or delayed by the Sellers. If the Sellers withheld or delay such approval without a valid reason or do not answer within 20 (Atwenty) notify Business Days after getting reasonably necessary documentation to evaluate such Third Party Claim or the Buyer considers that reasons for such rejection or delay are not valid reasons, the Buyer may settle such Third Party from whom indemnification is sought Claim, ensuring all possible mitigation of Loss measures. In any case, the Sellers shall not be held liable for any part (the “Indemnifying Party”or all) of the existence of Third Party Claim that Claim and (B) transmit to the Indemnifying Party exceeds what would have been a notice (a “Claim Notice”) describing, in reasonable detail, the nature settlement of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from Third Party Claim based on the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement legal merits of the claim and diligently defend the claim; providedcosts in pursuing the matter with such third party in the courts or arbitration (as the case may be). If such dispute arises, however, that (i) the Indemnifying Party Buyer shall keep the Indemnified Party fully apprised as be obliged to provide to the status Sellers any and all information and documents concerning subject matter of such dispute.
8.8.3. If the Sellers has paid any amounts to the Buyer and/or the Group Company as a settlement of the defenseBuyer’s claim related to the Third Party Claim and, and (ii) thereafter, the Indemnifying Party Buyer and/or the Group Company have recovered all or some of such amounts from any third party, then the Buyer or the Group Company shall obtain pay to the prior written approval Sellers, amounts equal to the proportions of the Indemnified amounts actually paid by the Sellers, without delay:
(a) an amount equal to such recovered amount less any reasonable costs and expenses (including legal costs and Taxes) incurred or subsequently payable by the Buyer or the Group Company; or
(b) if such recovered amount less any reasonable costs and expenses (including legal costs and Taxes) is greater than the amount paid by the Seller to the Buyer and/or the Group Company in respect of the relevant Third Party before entering into Claim, such lesser amount which has been so paid by the Seller.
8.8.4. As long as the Seller 1 is the CEO of the Company, for any settlement matter or circumstance becoming known pursuant to Section 8.8.1, other than the breach of the Sellers’ Warranties indicated in Section 6 of Annex 3, failure to observe any of the material requirements set forth in this Section 8.8 and failure to rectify such claim asserting breach within reasonable time period since receipt of a written notice by the Sellers, shall entitle the Sellers to refuse to cover the Loss in connection with the Third Party Claim (but only to the extent such failure increased the Sellers’ liability). As long as the Seller 1 is the CEO of the Company, for any liability against matter or circumstance becoming known pursuant to Section 8.8.1, regarding the Indemnified Partybreach of the Sellers’ Warranties indicated in Section 6 of Annex 3, imposing failure to observe any obligations or restrictions on of the Indemnified Partymaterial requirements set forth in this Section 8.8 and failure to rectify such breach within reasonable time period since receipt of a written notice by the Sellers, ceasing shall entitle the Sellers to defend against such claim or otherwise adversely impacting refuse to cover the Indemnified PartyLoss in connection with the Third Party Claim. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by same regulation applies to the Indemnified Party following Fundamental Warranties regardless of whether the delivery Seller 1 is the CEO of a Notice the Company. For avoidance of Assumption; provideddoubt, howeverSeller 1, that as the Indemnified Party CEO of the Company, shall be entitled to employ counsel at its own expense to participate in provide the handling other Sellers with the information regarding any claims and it will not be considered a breach of confidentiality provisions by the Seller 1. For any matter or circumstance becoming known while the Seller 1 is no longer the CEO of the claim. The Indemnifying Party shall not be obligated Company, failure to indemnify the Indemnified Party for observe any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of material requirements set forth in this Section 8.8 and failure to rectify such claim and a breach within reasonable opportunity to respond thereto, or (z) the time period within which since receipt of a written notice by the Sellers, shall release the Sellers from obligation to deliver a Notice of Assumption has not yet expired.
(3) If cover the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, Loss in connection therewith to with the extent it is a claim for which the Indemnifying Third Party is obligated to indemnify under this AgreementClaim.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (AST SpaceMobile, Inc.)
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each If an indemnifiable claim is made against an Indemnified Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
(1) The such Indemnified Party shallshall promptly, with reasonable promptness after the but in no event more than 30 days following such Indemnified Party’s receipt of such Third Party has notice of a Claim, (A) notify the Party from whom indemnification is sought deliver a written notice (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received with respect thereto, provided, however, that failure to provide such notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the time period required notice period, shall not affect the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over indemnification hereunder except to the defense and settlement of the claim and diligently defend the claim; provided, however, extent that (i) the Indemnifying Party was actually and materially prejudiced as a result of such failure. The Claim Notice shall keep describe to the extent material the facts giving rise to the Third Party Claim in reasonable detail, shall include copies of all material written documentation delivered to the Indemnified Party fully apprised as to by the status third party asserting such Third Party Claim and shall indicate the estimated amount, if reasonably practicable, of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations Loss that has been or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting may be sustained by the Indemnified Party. The Indemnifying Party shall have 30 days from the date of personal delivery or mailing of the Claim Notice (the “Notice Period”) to notify the Indemnified Party in writing whether or not be liable it shall assume the defense of the Indemnified Party against such Third Party Claim; provided, that if the Indemnifying Party assumes such defense, such written notice shall include a written notice acknowledging its unconditional obligation to fully indemnify the Indemnified Party for any legal fees Losses resulting from such Third Party Claim in accordance with, and subject to, the limitations contained in this Article VIII. Notwithstanding the foregoing, without the prior written consent of the Indemnified Party, the Indemnifying Party shall not have the right to assume the defense of any Third Party Claim described in a Claim Notice that (i) seeks an injunction or other equitable relief as a remedy, (ii) relates to or arises in connection with any criminal or quasi-criminal allegation, proceeding, action, ▇▇▇▇▇▇▇▇.▇▇.▇▇▇▇▇▇▇▇ indictment or investigation, (iii) in the reasonable judgment of the Indemnified Party, is likely to result in liability that in the aggregate (A) will exceed the then remaining amount of the Cap or (B) will not exceed the Deductible, (iv) primarily relates to a claim or demand of, or a dispute with, a Material Customer of the Company or (v) the defense of which by the Indemnifying Party could otherwise have a material adverse effect on the Indemnified Party. All costs and expenses incurred by the Indemnifying Party in defending such claim or demand shall be a liability of, and shall be paid by, the Indemnifying Party. In the event that the Indemnifying Party notifies the Indemnified Party following within the delivery Notice Period that it desires to assume the defense of a Notice Third Party Claim, except as herein provided, the Indemnifying Party shall have the right to do so by appropriate proceedings. If the Indemnifying Party has the right to and elects to assume the defense of Assumptiona Third Party Claim, the Indemnifying Party shall select counsel, contractors and consultants of recognized standing and competence; shall take all steps reasonably necessary in the defense or settlement of such Third Party Claim; and shall diligently pursue the resolution of such Third Party Claim. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its sole cost and expense; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify pay all reasonable fees, costs and expenses of one outside counsel in connection with such participation (i) if it requests the Indemnified Party for to participate or (ii) if in the opinion of outside counsel to the Indemnified Party, a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party that would make joint representation of the Indemnifying Party and the Indemnified Party impermissible under applicable standards of professional conduct. If the Indemnifying Party chooses to defend or prosecute any amount paid Third Party Claim, all of the parties hereto shall reasonably cooperate in the defense or payable prosecution thereof. Subject to attorney-client privilege, such cooperation shall include the retention and (upon the Indemnifying Party’s reasonable request) the provision to the Indemnifying Party of records and information which are relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder; provided, however, that any out-of-pocket cost incurred by such the Indemnified Party in connection with such cooperation shall be at the settlement of any claim if (x) Indemnifying Party’s expense. If the Indemnifying Party has delivered assumed the defense of a timely Notice of Assumption and Third Party Claim, the Indemnifying Party may only settle or compromise a Third Party Claim with the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld or delayed); provided, however, that the Indemnifying Party may settle or compromise such amount was agreed to a Third Party Claim without the prior written consent of the Indemnified Party if such settlement or compromise (x) provides solely for the payment of money by the Indemnifying Party, Party and includes a complete and unconditional release of the Indemnified Party from all liability in respect of such Third Party Claim and (y) does not subject the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, any injunctive relief or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) other equitable remedy. If the Indemnifying Party does not deliver defend the Indemnified Party against a Notice of Assumption relating to any claim within Third Party Claim for which the required Indemnifying Party has an indemnification obligation hereunder, whether by not giving the Indemnified Party timely notice periodas provided above or otherwise, then the Indemnified Party shall have the right to defend and settle such Third Party Claim; provided that the claim in amount of any such manner as it may deem appropriate. The Indemnifying Third Party shall promptly reimburse Claim, or, if the Indemnified Party for all reasonable costs and expenses incurred same be contested by the Indemnified Party, including attorneys’ feesthen that portion thereof as to which such defense is unsuccessful, in connection therewith to shall be the extent it is a claim for which liability of the Indemnifying Party is obligated hereunder, subject to indemnify under the limitations set forth in this AgreementARTICLE VIII.
Appears in 1 contract
Sources: Share Purchase Agreement (Cdi Corp)
Third Party Claim. The indemnification obligation pursuant In the event that EUL, CPI or any other party entitled to Section 8.1(b) for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Section 11.02 hereof shall choose to assert a claim for Loss or potential Loss based upon a claim by a third party (that third-party claim or assertion, a “"Third Party Claim”"), are subject to the following terms and conditions:
party seeking indemnification (1"Indemnified Party") The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) shall notify the Party from whom party against which indemnification is sought (the “"Indemnifying Party”") in writing of such claim, promptly following the occurrence of the existence event giving rise thereto, certifying that such a claim has been asserted and the basis therefor which shall be set forth in reasonable detail ("Notification").
(i) The Indemnifying Party shall acknowledge receipt of that Claim the Notification and advise the Indemnified Party in writing twenty (B20) transmit days after receipt thereof as to whether the Indemnifying Party a notice (a “agrees to such Third Party Claim Notice”) describing, in reasonable detail, and whether the nature defense of the Claim, Third Party Claim shall be undertaken by counsel of the choice of and copies at the expense of any papers served with respect to such Claimthe Indemnifying Party. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if If the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that dateso agrees, the Indemnifying Party shall notify be deemed to have accepted any indemnifiable Loss suffered arising from such Third Party Claim, the defense of which has been assumed by the Indemnifying Party. If the Indemnifying Party advises the Indemnified Party that it shall undertake the defense of the Third Party Claim, the Indemnified Party shall deliver all the documents related to the Third Party Claim to the Indemnifying Party or to its counsel, after which the responsibility of the Indemnified Party for the defense of the Third Party Claim shall cease, except that the Indemnified Party shall make available all documents, books and records in its possession related to the Third Party Claim, at no expense to the Indemnifying Party, and shall fully cooperate with counsel for the Indemnifying Party, including providing its personnel who are acquainted with the facts or the documents or books and records related to the Third Party Claim.
(ii) If the Indemnifying Party advises the Indemnified Party that the Indemnifying Party will assume control defense of the defense and settlement Third Party Claim will not be undertaken, either the Indemnified Party shall settle such Third Party Claim (in which case, the amount of such claim (a “Notice settlement and all attorneys' fees attendant to the achievement of Assumption”such settlement shall be deemed included in any computation to determine Loss).
(2) If , or the Indemnified Party shall notify the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend identity of the claim; provided, however, that (i) the Indemnifying Party shall keep counsel for the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing who has been selected to defend against such claim or otherwise adversely impacting the Indemnified PartyThird Party Claim. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by fully cooperate with the Indemnified Party following and its counsel to the delivery extent that the Indemnifying Party has knowledge of a Notice the facts or circumstances relating to the Third Party Claim and the Indemnified Party shall cause its counsel to be available to the Indemnifying Party or its counsel to respond to any inquiries of Assumption; provided, however, the Indemnifying Party concerning the progress of such defense. In the event that the Indemnified Party shall be entitled to employ counsel at its own expense to participate assert a claim for Loss as a result of any loss suffered by the Indemnified Party in settling or defending such Third Party Claim, the handling Indemnified Party shall notify the Indemnifying Party in writing of the such claim. The Indemnifying Party shall not be obligated pay all costs related to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of or the defense within thirty (30) days after a demand for the Loss or any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredcomponent part is made.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which the Indemnifying Party is obligated to indemnify under this Agreement.
Appears in 1 contract
Sources: Acquisition Agreement (Corspan Inc)
Third Party Claim. The indemnification obligation pursuant (a) With respect to Section 8.1(b) for each any Third Party in its capacity as a Service Provider Claim, Seller shall lead and assume the defense of any such Third Party Claim and shall, at all times and to the maximum extent possible, keep the Purchaser reasonably informed of the status of such Third Party Claim and the indemnification obligation pursuant proceedings related thereto.
(b) The Purchaser shall give written notice to Section 8.1(c) for each party in Seller as to whether or not it wishes to join, (at its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”own costs), are subject through its own counsels – in addition to the following terms attorneys and conditions:
(1) The Indemnified Party shallconsultants appointed by Seller or the Company –, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) defense of the existence of that Third Party Claim and (B) transmit shall also have the right, upon written notice to the Indemnifying Party a notice (a “Claim Notice”) describingSeller, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating request to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”to the maximum extent permitted under applicable Law).
(2c) If In the Indemnifying Party delivers a Notice of Assumption within event that the required notice period, the Indemnifying Party shall assume control (subject Purchaser elects to Indemnified Party’s right to participate at its own expense) over join the defense and settlement of the claim Third Party Claim pursuant to Clause 12.3.4(b), Seller shall, and diligently defend shall cause the claim; Company to, duly take into account any reasonable instructions of the Purchaser’s attorneys and consultants in managing any such Third Party Claim, it being understood that Seller, after consultation with the Purchaser, shall have the exclusive competence to take the final decision in the event of any conflict between Seller (or its counsels) and the Purchaser (or its counsels) about the course of action to be taken with reference to the defense of the Third Party Claim, provided, however, that, as an exception to the foregoing, with respect to any acknowledgment or settlement of a Third Party Claim, the provisions of Clause 12.3.4(f) concerning such acknowledgment and settlement shall apply.
(d) Should the Purchaser notify in writing to Seller that it intends to assume control of the defense of the Third Party Claim, then the Purchaser shall have the exclusive competence to take the relevant final decision about the course of action to be taken with reference to the defense of the Third Party Claim.
(e) Should the Purchaser fail to give notice of its intention to join the defense of the Third Party Claim, or to assume control of such defense, or inform Seller that it does not wish to join or assume control of the defense, Seller:
(i) shall be free to proceed with the defense, provided that the Purchaser shall be granted with the possibility to provide reasonable comments on such defense and Seller shall have the right to (1) take into consideration any Purchaser’s reasonable opinions in respect of the relevant remedies and actions and (2) without prejudice to Clause 12.3.4(f) below, take into account any reasonable request of the Purchaser in relation to the conduct of the legal proceedings and/or settlement negotiations and/or other initiatives in relation to such Third Party Claim;
(ii) shall, and shall cause the Company (where applicable), to diligently and promptly manage any such Third Party Claim, taking without undue delay any reasonable actions, and preparing, also through their counsel, any relevant filings, judicial or administrative acts or other documents, with due care and taking into account the interest of the Company;
(iii) shall regularly (at reasonable intervals) inform the Purchaser about the status of the matter and notify the Purchaser, without undue delay, of all material correspondence or other actions or developments in connection with the Third Party Claim.
(f) In the event that the Purchaser, but not Seller, is willing to accept a settlement, the Parties shall promptly meet and consult with each other in good faith with a view to reaching agreement on the proposed settlement. Seller may elect, at their own discretion, to not accept the proposed settlement, in which case the liability of Seller shall be limited to the higher of: (i) the Indemnifying Loss calculated as if the Third Party shall keep Claim were settled in accordance with the Indemnified Party fully apprised as to the status of the defense, proposed settlement; and (ii) the Indemnifying Loss actually suffered by the Purchaser (or, the Company, as the case may be), taking into account the final determination of the Third Party Claim, in any case without prejudice to Seller’s liability limitations in accordance with the applicable provisions of this Agreement. Should the Purchaser notify to assume control of the defense of the Third Party Claim pursuant to Clause 12.3.4(d), the Purchaser shall obtain the not acknowledge or settle a Third Party Claim, without ▇▇▇▇▇▇’s prior written approval of the Indemnified Party before entering into any settlement of consent, it being understood that such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party consent shall not be liable for unreasonably denied, withheld or delayed. If a firm offer is made to the Purchaser or the Company to settle a Third Party Claim, which Seller, but not the Purchaser or any legal fees or expenses incurred by of the Indemnified Party following Company, is willing to accept, the delivery of a Notice of Assumption; provided, however, that Purchaser and/or the Indemnified Party Company shall be entitled free not to employ counsel at its own expense enter into such settlement and commence or continue the relevant proceeding. In such case, Seller’s liability shall, in any event, be limited to participate in the handling amount of the claim. The Indemnifying Party shall proposed settlement (that Seller would have accepted but was not be obligated to indemnify accepted the Indemnified Party for Purchaser or by any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying PartyCompany), (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith except to the extent it is a claim for such proposed settlement contained material non-monetary obligations which the Indemnifying Party is obligated to indemnify under this AgreementPurchaser or the Company reasonably objected (in which case such limitation of Seller’s liability shall not apply).
Appears in 1 contract
Third Party Claim. The indemnification obligation pursuant to Section 8.1(b) for each 5.7.1. Where an Indemnified Party has received Notice of any Claim or becomes aware of any matter which may result in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement Claim from any other Person (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Third Party Claim”), are subject to the following terms and conditions:
(1) The such Indemnified Party shallshall within 30 (thirty) days of receiving such Notice or becoming aware of any Third Party Claim, with reasonable promptness after the Indemnified Party has give written notice of a Claim, (A) notify the such Third Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice in reasonable detail in light of the circumstances then known to the Indemnified Party (a “Third Party Claim Notice”) describing, in reasonable detail, ); provided that the nature failure of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if provide such notice shall not relieve the Indemnifying Party has received notice from of its obligations under Clause 5 of this Agreement.
5.7.2. Upon receipt of the Indemnified Third Party relating to any Claim at least five (5) days before that dateNotice, the Indemnifying Party shall notify be obligated to undertake necessary legal actions to defend the Claim or take such action as may be best suitable in the circumstances with counsel reasonably satisfactory to the Indemnified Party, at such Indemnifying Party’s sole expense. Notwithstanding the foregoing, the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim may, (a “Notice of Assumption”).
(2i) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense, retain separate counsel to participate in such defence or any negotiations or settlement thereunder or (ii) over in the event the Indemnifying Party fails to assume such defense within the period set out in Clause 5.7.3 (i) below, the Indemnified Party may assume the defense and settlement of the claim and diligently defend the claim; providedor compromise such Third Party Claim by itself, however, that in which case: (ia) the Indemnifying Party shall keep remain liable to the Indemnified Party fully apprised as to Parties for the status of the defense, costs and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement expenses of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Third Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement Claim including all court costs and payment of any claim if interim amounts; (xb) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice period, the Indemnified Party shall have the right to defend contest, settle, compromise or otherwise dispose of such Third Party Claim without the claim in such manner as it may deem appropriateconsent of the Indemnifying Party.
5.7.3. The Indemnifying Party shall promptly reimburse make the indemnity payment in cash (or such other manner agreed in writing between the Indemnified Party for all reasonable costs and Indemnifying Party) to the Indemnified Party upon occurrence of earlier of the following: (i) the Indemnifying Party failing to assume defence within 10 (ten) days from the receipt of the Third Party Claim Notice or such other period within which such defense ought to be assumed to comply with requirements mandated by the third party claimant’s notice (where the third party claimant is a Governmental Authority) or otherwise as required under Applicable Law; or (ii) the Indemnifying Party having assumed the defence of the Third Party Claim, where a payment obligation under a Third Party Claim becomes due and payable including pursuant to a judgement, order by any Governmental Authority or arbitral award, in each case, which is not subject to any stay or other legal suspension or postponement, or a settlement or compromise having been consummated. Provided however that during the process of defense of the Third Party Claim, if the Indemnified Party is required to incur any costs/expenses incurred (including but not limited to pursuant to a notice from any Governmental Authority or interim order passed by a court of law requiring the payment of whole or in part of the Third Party Claim), the Indemnifying Party shall immediately upon receipt of a notice from the Indemnified Party in this regard, remit the said amounts to the Indemnified Party, including attorneys’ feessubject to receipt of documents evidencing such amounts being payable, in connection therewith or otherwise discharge such Third Party Claim (as per the instructions of the Indemnified Party).
5.7.4. The Indemnifying Party agrees that it will not, without the prior written consent of the Indemnified Party: (i) make any payment to the extent it is relevant third party; (ii) consent to the entry of any judgment; (iii) enter into any settlement, with respect to any such Third Party Claim; and/or (iv) make any filings or written submission, whether independently or in response to any request or requirement to make such submission with any other third party including a claim for which Governmental Authority, with respect to the Indemnifying Third Party is obligated to indemnify under this AgreementClaim.
Appears in 1 contract
Sources: Share Subscription Agreement
Third Party Claim. The indemnification obligation (a) If Parent's Indemnity Claim involves any Action brought or made by any third party (a "Third Party Claim"), then Clorox may elect (by written notice to Parent delivered within 30 days of notice by Parent to Clorox pursuant to Section 8.1(b10.5(a)) for each to assume at its expense the defense of such Third Party Claim, including discussions with relevant Governmental Authorities, using counsel reasonably acceptable to Parent. If Clorox does not so elect to assume such defense, then such Third Party Claim shall be defended by Parent in its capacity such manner as a Service Provider it reasonably deems appropriate (and the indemnification obligation pursuant to costs, fees and expenses of Parent for such defense shall constitute Damages in accordance with Section 8.1(c) for each party 10.4), including entering a reasonable settlement thereof in its capacity as a Service Receiverwhich event the settlement plus Parent's costs, in each case, fees and expenses with respect to thereto shall be the Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (in accordance with Section 10.4; provided that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party Parent shall notify the Indemnified Party that the Indemnifying Party will assume control of the defense and settlement of such claim (a “Notice of Assumption”).
(2) If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party fully apprised as to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering not enter into any settlement of such claim asserting Third Party Claim without the prior written consent of Clorox, which consent shall not be unreasonably withheld, unless Clorox and its Affiliates have no liability therefor, are not required to admit any liability and will not be bound by any restrictions or limitations on its or their conduct thereafter, and no negative precedent for future Claims, Actions or litigation against Clorox and its Affiliates will be established, in which case no consent shall be required. If the Indemnified PartyThird Party Claim has been assumed by Clorox, imposing any obligations or restrictions on the Indemnified Party, ceasing Clorox shall cooperate with Parent in connection with such defense and shall permit Parent to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party participate therein; provided that Clorox shall not be liable to Parent under the provisions hereof for any legal fees or other expenses incurred by Parent in connection with Parent's participation in the Indemnified defense of such Third Party following Claim after Clorox has elected to assume the delivery defense thereof so long as Clorox is diligently contesting such Third Party Claim in good faith, unless Parent is advised by outside counsel that an actual or potential conflict of a Notice interest exists between Parent and Clorox or that there are different or additional defenses available to Parent that are not available to Clorox, in which case Parent may engage separate counsel (the reasonable fees and disbursements of Assumption; provided, however, that the Indemnified Party which shall be entitled to employ counsel at its own expense to participate in borne by Clorox). Clorox may not enter into any settlement of such Third Party Claim without the handling prior written consent of the claim. The Indemnifying Party Parent, which shall not be obligated unreasonably withheld, unless Parent and its Affiliates have no liability therefor, are not required to indemnify the Indemnified Party admit any liability and will not be bound by any restrictions or limitations on its or their conduct thereafter, and no negative precedent for any amount paid future Claims, Actions or payable by such Indemnified Party litigation against Parent and its Affiliates will be established, in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written which case no consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expiredshall be required.
(3b) If Clorox's Indemnity Claim involves a Third Party Claim, then Parent may elect (by written notice to Clorox delivered within 30 days of notice by Clorox to Parent pursuant to Section 10.5(a)) to assume at its expense the Indemnifying defense of such Third Party Claim, including discussions with relevant Governmental Authorities, using counsel reasonably acceptable to Clorox. If Parent does not deliver a Notice of Assumption relating so elect to any claim within the required notice periodassume such defense, the Indemnified then such Third Party Claim shall have the right to defend the claim be defended by Clorox in such manner as it may deem appropriatereasonably deems appropriate (and the costs, fees and expenses of Clorox for such defense shall constitute Damages in accordance with Section 10.4), including entering a reasonable settlement thereof in which event the settlement plus Clorox's costs, fees and expenses with respect thereto shall be the Damages in accordance with Section 10.4; provided that Clorox shall not enter into any settlement of such Third Party Claim without the prior written consent of Parent, which consent shall not be unreasonably withheld, unless Parent and its Affiliates have no liability therefor, are not required to admit any liability and will not be bound by any restrictions or limitations on its or their conduct thereafter, and no negative precedent for future Claims, Actions or litigation against Parent and its Affiliates will be established, in which case no consent shall be required. The Indemnifying If the Third Party Claim has been assumed by Parent, Parent shall promptly reimburse cooperate with Clorox in connection with such defense and shall permit Clorox to participate therein; provided that Parent shall not be liable to Clorox under the Indemnified Party provisions hereof for all reasonable costs and any legal or other expenses incurred by Indemnified PartyClorox in connection with Clorox's participation in the defense of such Third Party Claim after Parent has elected to assume the defense thereof so long as Parent is diligently contesting such Third Party Claim in good faith, including attorneys’ feesunless Clorox is advised by outside counsel that an actual or potential conflict of interest exists between Clorox and Parent or that there are different or additional defenses available to Clorox that are not available to Parent, in connection therewith which case Clorox may engage separate counsel (the reasonable fees and disbursements of which shall be borne by Parent). Parent may not enter into any settlement of a Third Party Claim without the prior written consent of Clorox, which shall not be unreasonably withheld, unless Clorox and its Affiliates have no liability therefor, are not required to the extent it is a claim admit any liability and will not be bound by any restrictions or limitations on its or their conduct thereafter, and no negative precedent for future Claims, Actions or litigation against Clorox and its Affiliates will be established, in which the Indemnifying Party is obligated to indemnify under this Agreementcase no consent shall be required.
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Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(i) for each Third Party in its capacity as a Service Provider and Claim Review Period In the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) by a third party (that third-party claim or assertion, a “Claim”), are subject to the following terms and conditions:
(1) The Indemnified Party shall, with reasonable promptness after the Indemnified Party has notice event of a Third Party Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies of any papers served with respect to such Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall have thirty (30) days following its receipt of the relevant Claim Notice (the “Third Party Claim Review Period”) to make such investigation of the underlying claim as it considers necessary or desirable and to notify the Indemnified Party that whether or not it disputes its liability to the Indemnifying Indemnified Party will assume control of the defense and settlement in respect of such claim Third Party Claim (a “Notice of Assumption”which notice shall set forth in reasonable detail the basis for such objection).
(2) . If the Indemnifying Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) the Indemnifying Party shall keep so notifies the Indemnified Party fully apprised as during the Third Party Claim Review Period that it disputes its liability to the status of the defense, and (ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall not be liable for any legal fees or expenses incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling respect of the claim. The Indemnifying relevant Third Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) If the Indemnifying Party does not deliver a Notice of Assumption relating to any claim within the required notice periodClaim, the Indemnified Party shall have the right to defend initiate proceedings against the claim Indemnifying Party in accordance with Article 8.10. If the Indemnifying Party fails to so notify the Indemnified Party during the Third Party Claim Review Period that it disputes its liability to the Indemnified Party in respect of the relevant Third Party Claim, the Indemnifying Party shall be deemed to have refused its liability to the Indemnified Party in respect of such manner Third Party Claim.
(ii) Defense of Third Party Claim Until such time, if any, as it may deem appropriateis determined or agreed that the Indemnifying Party has no liability to the Indemnified Party in respect of a particular Third Party Claim, the Indemnified Party shall, or shall cause the Company to, conduct the defense of such Third Party Claim in good faith using all reasonable means and defenses available to it or to the Company (having due regard for the interests of the Company). The Indemnifying Party shall promptly reimburse have the right, if it so notifies the Indemnified Party with reasonable promptness after receipt of the Claim Notice, (a) to be consulted in respect of such Third Party Claim and to participate at its own expense and with counsel of its choice in the defense thereof by the Indemnified Party (or in the case of a Third Party Claim against the Company, by the Company), (b) to take charge, at its own expense, of the defense of the Company, either alone or alongside counsel chosen by the Company, with the consent of the Company, which can only be refused if the Company in good faith believes that such defense by the Indemnifying Party would not be in the best interests of the Company. Such consent shall not be unreasonably withheld. In any event, the Indemnified Party shall afford the Indemnifying Party and its counsel the opportunity to comment and the right to object (which right shall not be unreasonably exercised) with respect to the conduct of the defense of the Third Party Claim. The Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any Third Party Claim and its defense, and shall with reasonable promptness provide the Indemnifying Party with copies of all material notices, written communications and filings (including court papers) made by or on behalf of any of the parties to the Third Party Claim. A failure by the Indemnified Party to so take into account any reasonable suggestions or objections made by the Indemnifying Party shall have as its consequence that the Indemnifying Party shall not be responsible for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith any Losses resulting from such Third Party Claim to the extent it is a claim for which that the Indemnifying Party is obligated to indemnify under this Agreementcan demonstrate that such Losses could have been avoided or limited had the suggestions or objections of the Indemnifying Party been followed.
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Third Party Claim. The indemnification obligation pursuant to Section 8.1(b(a) In the event any claim for each Party in its capacity as a Service Provider and the indemnification obligation pursuant to Section 8.1(c) for each party in its capacity as a Service Receiver, in each case, with respect to Damages claimed or asserted against a person claiming indemnification under this Agreement (an “Indemnified Party”) Article VII is based on a claim asserted by a third party (that third-party claim or assertioni.e., a Person other than a party hereto or its Affiliates, or agents) (a “Third-Party Claim”), are subject the party seeking indemnification shall give prompt written notice to such other party of the Third-Party Claim, which notice shall specify in reasonable detail the basis of such claim and the facts pertaining thereto, and indicating the sections of this Agreement allegedly breached to the following terms extent determinable which are the basis for such claim and conditions:the best estimate of the amount to the extent determinable or estimable as of such notice date of the Damages that has been or may be suffered by the Indemnified Party; provided that the failure to so notify any Indemnifying Party shall not relieve such Indemnifying Party of its obligations hereunder except to the extent such failure shall have prejudiced such Indemnifying Party.
(1b) The Indemnified Party shall, with reasonable promptness after In the Indemnified Party has notice of a Claim, (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of the existence of that Claim and (B) transmit to the Indemnifying Party a notice (a “Claim Notice”) describing, in reasonable detail, the nature of the Claim, and copies event of any papers served with respect to such Third-Party Claim. Within fifteen (15) calendar days following receipt of notice from the Indemnified Party relating to any Claim, but no later than five (5) calendar days before the date on which any response to a complaint or summons is due if the Indemnifying Party has received notice from the Indemnified Party relating to any Claim at least five (5) days before that date, the Indemnifying Party shall notify have the right, exercisable by written notice to the Indemnified Party that within thirty (30) days of receipt of a Claims Notice to assume and conduct the defense of the underlying Third-Party Claim with counsel selected by the Indemnifying Party will and reasonably satisfactory to the Indemnified Party; provided, that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assume control of the defense, which, notwithstanding the foregoing, shall be borne by the Indemnifying Party). Notwithstanding the foregoing, the Indemnifying Party shall not have the right to assume control of the defense of any Third-Party Claim and settlement shall pay the reasonable fees and out-of-pocket expenses of a single counsel retained by all such claim (a “Notice of Assumption”).
(2) If the Indemnifying Indemnified Parties with respect to such Third-Party delivers a Notice of Assumption within the required notice period, the Indemnifying Party shall assume control (subject to Indemnified Party’s right to participate at its own expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that Claim if: (i) the Indemnifying Party shall keep does not conduct the Indemnified Party fully apprised as to the status defense of the defense, and Third- Party Claim with reasonable diligence; or (ii) the Third-Party Claim seeks non-monetary, equitable or injunctive relief, (ii) alleges violations of criminal law, or (iii) includes as the named parties in any such Third-Party Claim both an Indemnified Party and an Indemnifying Party, and either a defense is available to an Indemnified Party that is not available to an Indemnifying Party shall obtain or applicable ethical guidelines provide that, in either case, it would be inappropriate to have the prior written approval of same counsel represent both parties. If the Indemnified Party before entering into any settlement of such claim asserting any liability against the Indemnified Party, imposing any obligations or restrictions on the Indemnified Party, ceasing to defend against such claim or otherwise adversely impacting the Indemnified Party. The Indemnifying Party shall has assumed such defense as provided in this Section 7.6(b), the Indemnifying Party will not be liable for any legal fees or expenses subsequently incurred by the Indemnified Party following the delivery of a Notice of Assumption; provided, however, that the Indemnified Party shall be entitled to employ counsel at its own expense to participate in the handling of the claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party for any amount paid or payable by such Indemnified Party in connection with the settlement of any claim if (x) the Indemnifying Party has delivered a timely Notice of Assumption and such amount was agreed to without the written consent of the Indemnifying Party, (y) the Indemnified Party has not provided the Indemnifying Party with notice defense of such claim and a reasonable opportunity to respond thereto, or (z) the time period within which to deliver a Notice of Assumption has not yet expired.
(3) claim. If the Indemnifying Party does not deliver a Notice assume the defense of Assumption relating to any claim within the required notice periodThird-Party Claim in accordance with this Section 7.6(b), the Indemnified Party shall have the right may continue to defend such claim at the claim in such manner as it may deem appropriate. The Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable costs and expenses incurred by Indemnified Party, including attorneys’ fees, in connection therewith to the extent it is a claim for which cost of the Indemnifying Party is obligated to indemnify under this Agreementand the Indemnifying Party may still participate in, but not control, the defense of such Third-Party Claim at the Indemnifying Party’s sole cost and expense.
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Sources: Contribution and Exchange Agreement (Harbinger Group Inc.)