Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Can B Corp), Equipment Acquisition Agreement (Can B Corp), Asset Acquisition Agreement (Can B Corp)
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party). Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 3 contracts
Samples: Asset Acquisition Agreement (Cell-Nique Corp), Stock and Asset Acquisition Agreement (Navisite Inc), Stock and Asset Acquisition Agreement (Navisite Inc)
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out Within fifteen days after receipt of any claim or legal proceeding by a person other than the Indemnified PartyNotice, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Third Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimClaim. If the Indemnifying Party timely assumes the defense of any such claim or legal proceedingThird Party Claim, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and Third Party Claim and, at the sole cost and expense of the Indemnifying Party, the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall be entitled to participate in (but not control) the defense of any Third Party Claim, with its own counsel and at its own expense; provided, however, that if the named parties to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, Third Party Claim without the prior written consent of the Indemnified Party (Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume fails to give the Indemnified Party written notice within fifteen days after the Indemnifying Party’s receipt of the Notice that the Indemnifying Party is assuming the defense of any such claim Third Party Claim or litigation resulting therefrom if the Indemnifying Party fails to assume and continually maintain the defense of the Third Party Claim within 30 fifteen days after the date such claim is made: (a) Indemnifying Party’s receipt of the Notice, the Indemnified Party may defend against assume sole control of defense or settlement of such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice at the sole cost and expense of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim Third Party Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim Third Party Claim in a reasonably prudent manner. Notwithstanding any provision of this Article to the contrary, the Indemnified Party shall have the sole and exclusive right to assume and continually defend and/or settle any indemnification claim under this Article 11 (at the Indemnifying Party’s cost and expense) if (i) the Indemnified Party concludes in good faith that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Party, or that another conflict of interest exists or may occur in defense of such claim, (ii) the third-party in question is one of the Indemnified Party’s former, current or anticipated future customers, or (iii) the Indemnified Party determines, in good faith, that there are other, legitimate business reasons why it would not be in the best interests of the Indemnified Party, Purchaser and/or the Business for the Indemnifying Party to assume the defense of such claim; provided, however, that the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its own counsel and at its own expense.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Tandem Health Care, Inc.), Asset Purchase Agreement (Tandem Health Care, Inc.)
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if If the Indemnifying Party acknowledges to notifies the Indemnified Party in writing within the obligation of Dispute Period that the Indemnifying Party desires to indemnify defend the Indemnified Party with respect to all elements of such claim. If a Third-Party Claim pursuant to this Section 11.5(b) the Indemnifying Party assumes will have the defense of any such claim or legal proceedingright to defend, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party, such Third-Party shall take Claim by all steps necessary in appropriate proceedings, which proceedings will be vigorously and diligently prosecuted or defended by the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, final conclusion or will be settled at the entry discretion of any judgment arising from, any such claim or legal proceeding, without the Indemnifying Party (but only with the prior written consent of the Indemnified Party (in its sole discretion in the case of any settlement that provides for any relief other than the payment of monetary damages as to which consent shall not the Indemnified Party will be unreasonably withheld indemnified in full pursuant to this Article XI). Subject to the immediately preceding sentence, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or delayed) unless settlement thereof; provided that the settlement is only for cash Indemnified Party may, at the cost and includes a full release expense of the Indemnifying Party, at any time prior to the delivery by the Indemnifying Party of the notice referred to in the first sentence of this Section 11.5(b), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary, appropriate or desirable to protect its interests. Without limitationIf requested by the Indemnifying Party, it the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third-Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may participate in, but not control, any defense or settlement of any Third-Party Claim controlled by the Indemnifying Party pursuant to this Section 11.5(b) and, except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding anything to the contrary set forth in this Section 11.5(b), an Indemnifying Party’s right to assume the defense of any Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party shall exist so long as: (A) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have adequate financial resources to defend against the Third-Party Claim and fulfill the Indemnifying Parties’ indemnification obligations hereunder; (B) the Third-Party Claim involves only money damages and does not be deemed unreasonable to withhold consent to a settlement if seek an injunction or other equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in ; (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (aC) the Indemnified Party may defend against such claim has not been advised by counsel that an actual or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as potential conflict exists between the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate Parties in (but not control) connection with the defense of such action, the Third-Party Claim; and (D) the Third-Party Claim does not relate to or otherwise arise in connection with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim any criminal or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent mannerregulatory enforcement Proceeding.
Appears in 2 contracts
Samples: Asset Transfer Agreement (Zurn Water Solutions Corp), Asset Transfer Agreement (Zurn Water Solutions Corp)
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 2 contracts
Samples: Asset Acquisition Agreement (Cardium Therapeutics, Inc.), Asset Acquisition Agreement (Cell-Nique Corp)
Defense by the Indemnifying Party. In connection with any claim which may give giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Partyindemnified party, the Indemnifying Party, indemnifying party at its sole cost and expense, expense may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within 10 calendar days after the indemnifying party's receipt of notice of such claim, assume the defense of any such claim or legal proceeding if provided that the Indemnifying Party indemnifying party acknowledges to the Indemnified Party in writing the its obligation of the Indemnifying Party to indemnify the Indemnified Party with indemnified party in respect to all elements of such claimthe entire amount of the claims asserted therein. If the Indemnifying Party indemnifying party assumes the defense of any such claim or legal proceeding, the Indemnifying Party indemnifying party shall select counsel reasonably acceptable to the Indemnified Party indemnified party to conduct the defense of such claims or legal proceedings and at the its sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayedwithheld) unless the indemnifying party admits in writing its liability and agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement is only for cash and includes a concurrently with such settlement the indemnifying party pays into court the full release amount of the Indemnifying Party. Without limitationall losses, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplateddamages, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required expenses and liabilities to be paid by the Indemnified Partyindemnifying party in connection with such settlement. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expenseexpense and shall be entitled to any and all information and documentation relating thereto. If the Indemnifying Party indemnifying party does not assume (or continue to diligently and competently prosecute) the defense of any such claim or litigation resulting therefrom within 30 days after in accordance with the date such claim is made: (a) terms hereof, the Indemnified Party indemnified party may defend against such claim or litigation in such manner as it may deem appropriateappropriate (and the indemnifying party may participate at its own expense), including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on indemnifying party but such terms as settlement shall not be made without the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance prior written consent of the evidence indemnifying party (which consent will not be unreasonably withheld) unless the indemnified party agrees that the Indemnified Party did indemnifying party is not defend or settle liable for such third party claim in a reasonably prudent mannerunder this Agreement.
Appears in 2 contracts
Samples: Agreement of Purchase and Sale of Assets (U S Aggregates Inc), Agreement of Purchase and Sale (U S Aggregates Inc)
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expensethe expense of the Indemnifying Party. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 2 contracts
Samples: Purchase Agreement (Harbor Global Co LTD), Purchase Agreement (Pioneer Group Inc)
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Partyproceeding, the Indemnifying Party, at its sole cost and expense, expense may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation proceeding, whether or not under a reservation of the Indemnifying Party to indemnify the Indemnified Party rights with respect to all elements of such claimultimate liability under this Article VI. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless delayed if the settlement is only for cash and or judgment includes a full an unconditional release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required from all liability with respect to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Partysuch claim). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 twenty one (21) days after the date such claim is made: of the Indemnification Claim Notice, (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Boxscore Brands, Inc.), Asset Purchase Agreement (Pure Earth, Inc.)
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out Within seven days after receipt of any claim or legal proceeding by a person other than the Indemnified PartyNotice, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Third Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimClaim. If the Indemnifying Party timely assumes the defense of any such claim or legal proceedingThird Party Claim, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and Third Party Claim and, at the sole cost and expense of the Indemnifying Party, the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall be entitled to participate in (but not control) the defense of any Third Party Claim, with its own counsel and at its own expense; provided, however, that if the named parties to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, Third Party Claim without the prior written consent of the Indemnified Party (Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not fails to assume and continually maintain the defense of any such claim or litigation resulting therefrom the Third Party Claim within 30 seven days after the date such claim is made: (a) Indemnifying Party’s receipt of the Notice, the Indemnified Party may defend against assume sole control of defense or settlement of such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice at the sole cost and expense of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 2 contracts
Samples: Asset Purchase Agreement (New Age Beverages Corp), Noncompetition Agreement (New Age Beverages Corp)
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Partyproceeding, the Indemnifying Party, at its sole cost and expense, expense may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation proceeding, whether or not under a reservation of the Indemnifying Party to indemnify the Indemnified Party rights with respect to all elements of such claim. ultimate liability under this Article V. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless delayed if the settlement is only for cash and or judgment includes a full an unconditional release to the Indemnified Party from all liability with respect to such claim). If the Indemnified Party shall withhold its consent to an economic settlement tendered to it by the Indemnifying Party (the expense of which would be borne solely by the Indemnifying Party), then the amount of any indemnification liability of the Indemnifying Party. Without limitation, it Party specific to the claim which was the subject of the proffered and rejected settlement shall not be deemed unreasonable exceed the amount of such proffered and rejected settlement, plus costs and expenses applicable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Partyconsummating such settlement. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 twenty one (21) days after the date such claim is made: of the Indemnification Claim Notice, (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Checkpoint Systems Inc), Asset Purchase Agreement (Checkpoint Systems Inc)
Defense by the Indemnifying Party. (a) In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified PartyThird Party Claim, the Indemnifying Party, at its sole cost and expense, Party may, upon written notice given to the Indemnified Party, assume the defense of any such claim or legal proceeding Third Party Claim if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimThird Party Claim. If the Indemnifying Party assumes the defense of any such claim or legal proceedingThird Party Claim, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings Third Party Claim, and at the sole cost and expense of the Indemnifying Party Party, shall take all steps it deems necessary or appropriate in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) ), unless the such settlement is only for cash and or judgment includes a full release of the Indemnifying PartyIndemnified Party from such Third Party Claim. Without limitation, it shall not be deemed unreasonable to withhold consent to a No settlement if equitable relief against or compromise which seeks non-monetary damages which could have an adverse effect on the business or assets of the Indemnified Party is contemplated, awarded or stipulated, shall be entered into without the Indemnified Party is required to make an admission consent of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such actionThird Party Claim, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom Third Party Claim within 30 thirty (30) days after the date it receives written notice of such claim is madeThird Party Claim from the Indemnified Party: (ai) the Indemnified Party may defend against such claim or litigation Third Party Claim in such manner as it may deem necessary or appropriate, including, but not limited to, settling such claim or litigation, after giving notice Third Party Claim so long as such settlement includes a full release of the same to the Indemnifying PartyParty from such Third Party Claim, on such terms as the Indemnified Party may deem appropriate, ; and (bii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim Third Party Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim Third Party Claim in a reasonably prudent manner.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Echo Global Logistics, Inc.), Asset Purchase Agreement (Echo Global Logistics, Inc.)
Defense by the Indemnifying Party. (a) In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Partyproceeding, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, such claim is solely for monetary damages or relates to the IP Litigation, and, if requested, the Indemnifying Party gives the Indemnified Party reasonable assurances of its ability to pay any adverse judgment resulting from such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings proceeding and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld withheld, conditioned or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, delayed it being understood that it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against for the Indemnified Party is contemplated, awarded or stipulated, to withhold its consent from any settlement that (1) commits the Indemnified Party is required to make an admission of civil liability take, or to the commission of a crimeforbear to take, any action, or money is required to be paid by (2) does not provide for a complete release of the Indemnified PartyParty by such third party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days fifteen (15) Business Days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.Indemnification Claim Notice:
Appears in 2 contracts
Samples: Stock Purchase Agreement (Norcross Safety Products LLC), Stock Purchase Agreement (Safety Products Holdings, Inc.)
Defense by the Indemnifying Party. (a) In connection with any claim (other than as set forth below) which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified PartyThird Party Claim, the Indemnifying Party, at its the sole cost and expense, mayexpense of the Indemnifying Party, upon written notice given to the Indemnified Party, which shall be no later than thirty (30) days from receipt of the Indemnification Notice, may assume the defense of any such claim or legal proceeding if the Indemnifying Third Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimClaim. If the Indemnifying Party assumes the defense or prosecution of any such claim or legal proceedingThird Party Claim and any litigation resulting therefrom pursuant to this Section 9.5(a), the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party Party, to conduct the defense or prosecution of such claims or legal proceedings and Third Party Claim and, at the sole cost and expense of the Indemnifying Party Party, shall take all steps it deems necessary or appropriate in the defense or settlement thereof; provided, that the Indemnifying Party shall not be entitled to assume or control the investigation, if: (i) substantially all of the Losses associated with such Third Party Claim are not reasonably expected to be indemnifiable hereunder (including in the event the amount in dispute is reasonably likely to exceed the maximum amount for which the Indemnifying Party can then be liable pursuant to this Section 9 in light of the limitations on indemnification contained herein), (ii) such claim seeks non-monetary, equitable or injunctive relief or alleges any violation of criminal Law, (iii) the Indemnifying Party is also a party and the Indemnified Party determines in good faith after consultation with counsel that there may be one or more legal defenses available to such Indemnified Party that are different or additional to those available to the Indemnifying Party or (iv) such Claim has been made by a customer (including a prime contractor) or subcontractor of the Companies or any of their subsidiaries. The If the Indemnifying Party assumes the defense of such Third Party Claim in accordance herewith: (i) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of such Third Party Claim, but the Indemnifying Party shall control the investigation, defense and settlement thereof; (ii) subject to the last sentence of this Section 9.5(a), the Indemnified Party shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned) and (iii) the Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, Order or enter into any settlement with respect to such claim or legal proceeding, Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld withheld, delayed or delayed) unless conditional and shall be given if the settlement is only for cash and includes a by its terms (1) obligates the Indemnifying Party to pay the full release amount of the Indemnifying Party. Without limitationliability in connection with such Third Party Claim (subject to any limitations set forth on this Section 9 ), it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against (2) fully and finally releases the Indemnified Party is contemplatedcompletely in connection with such Third Party Claim, awarded (3) does not impose any obligation or stipulated, restriction on such Indemnified Party or its Affiliates and excludes any injunctive or non-monetary relief applicable to the Indemnified Party is required or any of its Affiliates, and (4) does not require any Indemnified Party or its Affiliates to make an admission of civil admit any wrongdoing or liability or to the commission of a crime, take or money is required to be paid by the Indemnified Partyrefrain from taking any action). The Indemnified Party shall be entitled to participate in (but Whether or not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) has assumed the defense of such action, with its counsel and at its own expense. If the Indemnifying Third Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementClaim, the Indemnifying Party shall have the burden will not be obligated to prove by a preponderance of the evidence that indemnify the Indemnified Party did hereunder with respect to any settlement entered into or any judgment consented to without the Indemnifying Party’s prior written consent (which consent shall not defend be unreasonably withheld, delayed or settle such third party claim in a reasonably prudent manner.conditioned) 39
Appears in 1 contract
Samples: Asset Purchase Agreement (Town Sports International Holdings Inc)
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, provided that, if the Indemnified Party is the Buyer, such defense will not, in the reasonable opinion of the Buyer, adversely affect the business, assets or undertakings of any of PPL, PML, ECP, Pioneer Poland U.S., Pioneer Poland UK and Pioneer Poland GP. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified PartyParties, the Indemnifying Party, Party at its sole cost and expense, may, upon written notice to the Indemnified Parties received by the Indemnified Parties within 10 calendar days of the Indemnifying Party' receipt of such claim, assume the defense of any such claim or legal proceeding if provided that the Indemnifying Party acknowledges to the Indemnified Party in writing the their obligation of the Indemnifying Party to indemnify the Indemnified Party with Parties in respect to of the entire amount of all elements of such claimthe claims asserted therein. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party Parties to conduct the defense of such claims or legal proceedings and at the their sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereofexpense. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of Parties, provided that the Indemnifying Party may, without the Indemnified Party. Without limitation's prior written consent, it shall not be deemed unreasonable to withhold settle or compromise any such action, claim or proceeding or consent to a settlement if equitable relief against entry of any judgment with respect to any such action or claim that requires solely the payment of money damages by the Indemnifying Party and that includes as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Party is contemplatedfrom all liability with respect to such action, awarded claim or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Partyproceeding. The Indemnified Party Parties shall be entitled to participate in (but not control) the defense of any such action, with its their own counsel and at its their own expenseexpense and shall be entitled to any and all information or documentation relating thereto. If the Indemnifying Party does not assume (or continue to diligently and competently prosecute) the defense of any such claim or litigation resulting therefrom within 30 days after in accordance with the date such claim is made: (a) terms hereof, the Indemnified Party Parties may defend against such claim or litigation in such manner as it they may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, Party on such terms as the Indemnified Party Parties may deem appropriate, and (b) the . The Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which any action by the Indemnified Party defended such third-party claim or Parties, which participation shall be limited to contributing information to the amount or nature defense and being advised of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent mannerits status.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Partyindemnified party, the Indemnifying Party, indemnifying party at its sole cost and expense, expense may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within ten (10) calendar days after the indemnifying party's receipt of notice of such claim, assume the defense of any such claim or legal proceeding if provided that the Indemnifying Party indemnifying party acknowledges to the Indemnified Party in writing the its obligation of the Indemnifying Party to indemnify the Indemnified Party with indemnified party in respect to all elements of such claimthe entire amount of the claims asserted therein. If the Indemnifying Party indemnifying party assumes the defense of any such claim or legal proceeding, the Indemnifying Party indemnifying party shall select counsel reasonably acceptable to the Indemnified Party indemnified party to conduct the defense of such claims or legal proceedings and at the its sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayedwithheld) unless the indemnifying party admits in writing its liability and agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement is only for cash and includes a concurrently with such settlement the indemnifying party pays into court the full release amount of the Indemnifying Party. Without limitationall losses, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplateddamages, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required expenses and liabilities to be paid by the Indemnified Partyindemnifying party in connection with such settlement. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expenseexpense and shall be entitled to any and all information and documentation relating thereto. If the Indemnifying Party indemnifying party does not assume (or continue to diligently and competently prosecute) the defense of any such claim or litigation resulting therefrom within 30 days after in accordance with the date such claim is made: (a) terms hereof, the Indemnified Party indemnified party may defend against such claim or litigation in such manner as it may deem appropriateappropriate (and the indemnifying party may participate at its own expense), including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on indemnifying party but such terms as settlement shall not be made without the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance prior written consent of the evidence indemnifying party (which consent will not be unreasonably withheld) unless the indemnified party agrees that the Indemnified Party did indemnifying party is not defend or settle liable for such third party claim in a reasonably prudent mannerunder this Agreement.
Appears in 1 contract
Samples: Agreement of Purchase and Sale of Assets (U S Aggregates Inc)
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall thereafter be entitled to participate in and assume control of the defense of any such action only if the Indemnified Party has a reasonable basis for concluding that its interests are in conflict with those of the Indemnifying Party. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party or the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. (a) In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its his sole cost and expense, expense may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 ten (10) days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Greenman Technologies Inc)
Defense by the Indemnifying Party. (a) In connection with any --------------------------------- claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified PartyThird Party Claim, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice given to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimproceeding. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings (provided that such counsel shall acknowledge in -------- writing to the Indemnifying Party and the Indemnified Party that in conducting such defense it is representing both the Indemnifying Party and the Indemnified Party; and that if such counsel subsequently determines that there is a conflict of interest in continuing to represent both the Indemnifying Party and the Indemnified Party, such counsel shall notify such parties, in which event the Indemnified Party shall be entitled to participate in such defense with its own counsel). The reasonable fees of the counsel selected by the Indemnified Party in accordance with the preceding sentence shall be at the sole cost and expense of the Indemnifying Party shall take all steps necessary in if it is finally determined that the defense or settlement thereofIndemnifying Party is responsible for such claim. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, proceeding without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) ), unless the such settlement is only for cash and or judgement includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified from such Third Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified PartyClaim. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 twenty (20) days after the date it receives written notice of such claim is madefrom the Indemnified Party: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem necessary or appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same litigation (subject to the Indemnifying Partylast sentence of Section 2.3), on such terms as the Indemnified Party may reasonably deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim Third Party Claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, Party assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimproceeding. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. For purposes of this Section 10.05, the parties agree that Xxxxxxxxxxxx Xxxx & Xxxxxxxxx is acceptable legal counsel for the Stockholders and Xxxx and Xxxx LLP is acceptable legal counsel for the Buyer. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after receipt of the prompt notice of the Buyer or the Company pursuant to Section 10.04 above, the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its the sole cost and expenseexpense of such Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 thirty (30) days after the date such claim is made: (ai) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (bii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any third party claim or legal proceeding by a person other than the Indemnified Partyproceeding, the Indemnifying Party, at its sole cost and expense, expense may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party in the Indemnified Party’s sole determination to conduct the defense of such claims or legal proceedings proceeding and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 thirty (30) days after the date of the Indemnification Claim Notice, then until the Indemnifying Party assumes the defense of such claim is madeclaim: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (b) all costs of litigation incurred by the Indemnified Party shall be included in the calculation of the Indemnified Party’s Loss; and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Marketing and Administration Agreement (Allstate Life Insurance Co)
Defense by the Indemnifying Party. In connection with any claim --------------------------------- which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (ai) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, ; and (bii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its sole cost and expense, Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with 46 PAGE respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall bear its costs and expenses incurred in connection with its defense of any claim under this Section 6.4, provided that, if the Buyer of the Company is the Indemnified Party, the Indemnifying Party, if it assumes the control of such claim, may be reimbursed for its reasonable out-of-pocket costs in connection with such defense from the amounts then held pursuant to the Escrow Agreement pursuant to the procedures set forth therein. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only terms thereof provide for cash the unconditional release and includes a full release discharge of the Indemnified Party; provided that if the Indemnified Party is the Buyer or the Company, the Indemnifying Party. Without limitation, it Party shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against of, or the Indemnified Party is contemplatedentry of any judgment arising from, awarded any such claim or stipulatedlegal proceeding without the consent of the Buyer where the Buyer or the Company shall have reasonably demonstrated that the circumstances surrounding such settlement or judgment could result in an adverse impact upon the business, operations, assets or financial position of the Buyer, the Indemnified Party is required to make an admission of civil liability Company or to the commission of a crime, or money is required to be paid by the Indemnified Partyany Subsidiary. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expenseexpense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest). If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom as provided in this Section 6.4 within 30 thirty (30) days after the date such that the Indemnified Party has given notice of the claim is madeto the Indemnifying Party: (a) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, litigation on such terms as the Indemnified Party may deem appropriate, ; and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Thermo Process Systems Inc)
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.. 9 of 14 Initials: _____, _____, _____
Appears in 1 contract
Defense by the Indemnifying Party. (a) In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice given to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimclaim if the facts alleged in such Third Party Claim are subsequently determined to be accurate. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable satisfactory to the Indemnified Party to conduct the defense of such claims or legal proceedings and and, at the sole cost and expense of the Indemnifying Party Party, shall take all steps it deems necessary or appropriate in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, proceeding without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) ), unless the such settlement is only for cash and or judgement includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified from such Third Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified PartyClaim. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 ten (10) days after the date it receives written notice of such claim is madefrom the Indemnified Party: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.claim
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding Legal Proceeding by a person other than the Indemnified Partyindemnified party, the Indemnifying Party, indemnifying party at its sole cost and expense, expense may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within 10 calendar days after the indemnifying parties receipt of notice of such claim, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimLegal Proceeding. If the Indemnifying Party indemnifying party assumes the defense of any such claim or legal proceedingLegal Proceeding, the Indemnifying Party indemnifying party shall select counsel reasonably acceptable to the Indemnified Party indemnified party to conduct the defense of such claims or legal proceedings Legal Proceedings and at the its sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceedingLegal Proceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash indemnifying party admits in writing its liability and includes a full release agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Partysuch settlement. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expenseexpense and shall be entitled to any and all information and documentation relating thereto. If the Indemnifying Party indemnifying party does not assume (or continue to diligently and competently prosecute) the defense of any such claim or litigation Legal Proceeding resulting therefrom within 30 days after in accordance with the date such claim is made: (a) terms hereof, the Indemnified Party indemnified party may defend against such claim or litigation Legal Proceeding in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigationLegal Proceeding, after giving notice of the same to the Indemnifying Partyindemnifying party, on such terms as the Indemnified Party indemnified party may deem appropriate. In any action by the indemnified party seeking indemnification from the indemnifying party in accordance with the provisions of this Section 8, and (b) the Indemnifying Party indemnifying party shall not be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party indemnified party defended such third-party claim Legal Proceeding; provided that such limitations shall not apply to claims of fraud, bad faith, gross negligence or willful misconduct by the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent mannerindemnified party.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity for indemnification hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Partythird party, the Indemnifying Party, Party at its sole cost and expense, expense may, upon written notice to the Indemnified PartyParty given within twenty (20) days after the date of the notice of the claim from the Indemnified Party pursuant to Section 14.4, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimproceeding. If the Indemnifying Party so assumes the defense of any such claim or legal proceedingdefense, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such actiondefense, with its own counsel and at its own expense. In addition, if the Indemnifying Party so assumes such defense, it shall take all steps necessary in the defense or settlement thereof; provided, however, that the Indemnifying Party shall not consent to any settlement or to the entry of any judgment with respect to a claim or legal proceeding which does not include a complete release of the Indemnified Party from all liability with respect thereto or which imposes any liability on the Indemnified Party without the written consent of the Indemnified Party. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) legal proceeding, the Indemnified Party may defend against such claim or litigation legal proceeding (with the Indemnifying Party responsible for the reasonable fees and expenses of counsel for the Indemnified Party) in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person Person other than the Indemnified Party, the Indemnifying Party, at its sole cost and expense, shall be entitled to participate in the defense of such claim or legal proceeding and may, upon written notice to the Indemnified Party within thirty (30) days following the Indemnifying Party's receipt of the Indemnified Party's notice of such claim pursuant to Subsection 12.04, assume and control the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimproceeding. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereofproceedings. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement (a) there is only for cash and includes a full release no finding or admission of any violation of law or any violation of the Indemnifying Party. Without limitation, it shall not rights of any Person and no effect on any other claims that may be deemed unreasonable to withhold consent to a settlement if equitable relief made against the Indemnified Party and (b) the sole relief provided is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be monetary damages that are paid in full by the Indemnified Indemnifying Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 thirty (30) days after the date such claim is made: (ax) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriateappropriate in its reasonable discretion in light of its evaluation of the probability of an adverse judgment in connection with such claim or litigation, the estimated damages that would be awarded by a court rendering such potential adverse judgment and its estimate of the out- of-pocket costs of defending such claim or litigation, and (by) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent mannermanner consistent with clause (x) of this Subsection 12.05.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim --------------------------------- which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimproceeding. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date on which notice of such claim is madereceived: (a) the Indemnified Party may may, at the Indemnifying Party's sole expense (payable as incurred and on demand) defend against such claim or litigation as set forth in such manner as it may deem appropriateSection 8.3, including, but not limited to, settling such claim or litigation, ----------- after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless ), provided, that, if the Indemnified Party withholds consent to any settlement is only of a claim for cash and includes a full release of monetary damages only, the Indemnifying Party. Without limitation, it shall not be deemed unreasonable 's liability to withhold consent to a settlement if equitable relief against indemnify the Indemnified Party is contemplated, awarded or stipulated, for such claims under this Section shall not exceed the Indemnified Party is required to make an admission of civil liability or to amount set forth in the commission of a crime, or money is required to be paid by the Indemnified Partyproposed settlement. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date written notice of such claim is madeprovided to the Indemnifying Party: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigationlitigation (without relieving the Indemnifying Party of its indemnification obligations), after giving written notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Avid Technology Inc)
Defense by the Indemnifying Party. In connection with any claim which may (a) The Indemnified Party shall promptly give rise notice to indemnity hereunder resulting from or arising out the Indemnifying Party after the Indemnified Party has knowledge of any claim or the commencement of legal proceeding proceedings, whichever shall first occur, against an Indemnified Party in respect of which recovery may be sought by a person other than the an Indemnified Party, Party against the Indemnifying Party, Party under the indemnity set forth in this Article and shall permit the Indemnifying Party at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation any litigation resulting from such claim. Failure of the Indemnifying Party to indemnify notify the Indemnified indemnified party of its election to defend any such action within twenty (20) Business Days after notice thereof shall have been given to them shall be deemed a waiver by the Indemnifying Party with respect of its right to all elements of so defend such claimaction. If the Indemnifying Party assumes the defense of any such claim or legal proceedinglitigation resulting therefrom, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense obligations hereunder of the Indemnifying Party as to such claim shall take be limited to taking all reasonable steps necessary in the defense or settlement thereofof such claim or litigation resulting therefrom and using reasonable care in defending or settling such claims and to holding the Indemnified Parties harmless from and against any losses, damages or liabilities caused by or arising out of any settlement approved by the Indemnified Party or any judgment in connection with such claim or litigation resulting therefrom. The Except with the consent of the Indemnified Party, Indemnifying Party shall not not, in the defense of such claim or any litigation resulting therefrom, consent to a settlement of, or the entry of any judgment arising fromor enter into any settlement which, any in each case, does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Party of a release from all liability in respect of such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Partylitigation. The Indemnified Party shall be entitled to participate join in (but not control) the defense of any such action, with its own counsel and counsel, at its own sole cost and expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Stock Purchase Agreement (Standard Management Corp)
Defense by the Indemnifying Party. In connection with any claim --------------------------------- which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (provided that the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, subject to the limitations in this Section 5). If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party it shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld withheld), unless such settlement or delayed) unless the settlement is only for cash and includes judgment contains a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against provision releasing the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil from all liability or to the commission of a crime, or money is required to be paid by the Indemnified Partyfor such claim. The Indemnified Party shall cooperate with and shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date receipt of notice of such claim is madefrom the Indemnified Party: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving at least 15 days' prior written notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its her counsel and at its her own expense. If ; in such event, the Indemnifying Party may not thereafter seeks seek to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes assume the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall thereafter be entitled to participate in and assume control of the defense of any such action if the Indemnified Party has a reasonable basis for concluding that its interests would be better served. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does do not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party or the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Stock Purchase Agreement (Airport Systems International Inc)
Defense by the Indemnifying Party. In connection with any claim --------------------------------- which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (provided that the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, subject to the limitations in this Section 5). If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party it shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld withheld), unless such settlement or delayed) unless the settlement is only for cash and includes judgment contains a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against provision releasing the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil from all liability or to the commission of a crime, or money is required to be paid by the Indemnified Partyfor such claim. The Indemnified Party shall cooperate with and shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense; provided, however, that if the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such claim or legal proceeding, the reasonable fees and expenses of counsel to the Indemnified Party shall be considered "Damages" for purposes of this Agreement. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date receipt of notice of such claim is madefrom the Indemnified Party: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving at least 15 days' prior written notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If ; in such event, the Indemnifying Party may not thereafter seeks seek to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding Legal Proceeding by a person other than the Indemnified Partyindemnified party, the Indemnifying Party, indemnifying party at its sole cost and expense, expense may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within 10 calendar days after the indemnifying parties receipt of notice of such claim, assume the defense of any such claim or legal proceeding if Legal Proceeding provided that the Indemnifying Party indemnifying party acknowledges to the Indemnified Party in writing the its obligation of the Indemnifying Party to indemnify the Indemnified Party with indemnified party in respect to all elements of such claimthe entire amount of the claims asserted therein. If the Indemnifying Party indemnifying party assumes the defense of any such claim or legal proceedingLegal Proceeding, the Indemnifying Party indemnifying party shall select counsel reasonably acceptable to the Indemnified Party indemnified party to conduct the defense of such claims or legal proceedings Legal Proceedings and at the its sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceedingLegal Proceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayedwithheld) unless the indemnifying party admits in writing its liability and agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement is only for cash and includes a concurrently with such settlement the indemnifying party pays into court the full release amount of the Indemnifying Party. Without limitationall losses, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplateddamages, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required expenses and liabilities to be paid by the Indemnified Partyindemnifying party in connection with such settlement. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expenseexpense and shall be entitled to any and all information and documentation relating thereto. If the Indemnifying Party indemnifying party does not assume (or continue to diligently and competently prosecute) the defense of any such claim or litigation Legal Proceeding resulting therefrom within 30 days after in accordance with the date such claim is made: (a) terms hereof, the Indemnified Party indemnified party may defend against such claim or litigation Legal Proceeding in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigationLegal Proceeding, after giving notice of the same to the Indemnifying Partyindemnifying party, on such terms as the Indemnified Party indemnified party may deem appropriate. In any action by the indemnified party seeking indemnification from the indemnifying party in accordance with the provisions of this Section 11, and (b) the Indemnifying Party indemnifying party shall not be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party indemnified party defended such third-party claim Legal Proceeding or the amount of or nature of any such settlement; provided that such limitations shall not apply to claims of fraud, bad faith, gross negligence or willful misconduct by the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent mannerindemnified party.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges by providing prompt notice to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of and shall conduct such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party and shall take all steps necessary in the defense or settlement thereof. The ; provided, however, (i) the Indemnifying Party shall not consent to a settlement of, or acknowledge in writing that the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (is one which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplatedentitled to be indemnified by the Indemnifying Party hereunder, awarded or stipulatedand (ii) such defense shall be conducted reasonably, in good faith by adequate proceedings. Where the Indemnified Indemnifying Party is required entitled to make an admission undertake the defense of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The , the Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 15 days after the date notice of such claim is madeclaim: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the The Indemnifying Party may not thereafter seeks seek to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, unless the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend was grossly negligent in the defense or settle settlement of such third party claim. Provided the other party is not then (i) insolvent, (ii) not paying its debts as they become due, or (iii) in default under any provision hereof, the party defending any claim or legal proceeding shall not, without the written consent of the other party (not to be unreasonably withheld or delayed), permit a default judgment or consent to entry of any judgment, or settle or compromise any third party claim unless the claimant or claimants provide an unqualified release as to the Indemnified and the Indemnifying Party from all liability in a reasonably prudent mannerrespect to the third party claim.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sunlink Health Systems Inc)
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Partyproceeding, the Indemnifying Party, at its sole cost and expense, expense may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if and shall thereby assume the Indemnifying Party acknowledges to costs for any Losses actually suffered or incurred by the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimregard thereto. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party of its choice to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless ). If the Indemnified Party shall withhold its consent to an economic settlement is only for cash and includes a full release tendered to it by the Indemnifying Party (the expense of which would be borne solely by the Indemnifying Party), then the amount of any indemnification liability of the Indemnifying Party. Without limitation, it Party specific to the claim which was the subject of the proffered and reported settlement shall not be deemed unreasonable exceed the amount of such proffered and reported settlement, plus costs and expenses applicable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Partyconsummating such settlement. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 fifteen (15) days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.Indemnification Claim Notice:
Appears in 1 contract
Samples: Asset Purchase Agreement (Blonder Tongue Laboratories Inc)
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing of the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and shall, at the its sole cost and expense of the Indemnifying Party shall expense, take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without other than the prior written consent payment of money, unless such settlement includes a release of the Indemnified Party (which consent shall not be unreasonably withheld from any and all claims arising from or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable related to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded such claim or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Partylegal proceeding. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 thirty (30) days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, Party on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove provide by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner. In the event that the Welkin Shareholders constitute the Indemnifying Party, all references herein to the Indemnifying Party shall be deemed to mean the Representative, who shall have the power and authority to bind all of the Welkin Shareholders. All costs and expenses to be borne by the Indemnifying Party, if the Indemnifying Party is the Welkin Shareholders, shall be borne severally by each of the Welkin Shareholders.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Nichols Research Corp /Al/)
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out Within seven days after receipt of any claim or legal proceeding by a person other than the Indemnified PartyNotice, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Third Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimClaim. If the Indemnifying Party timely assumes the defense of any such claim or legal proceedingThird Party Claim, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and Third Party Claim and, at the sole cost and expense of the Indemnifying Party, the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall be entitled to participate in (but not control) the defense of any Third Party Claim, with its own counsel and at its own expense; provided, however, that if the named parties to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, Third Party Claim without the prior written consent of the Indemnified Party (Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed) unless . If the Indemnifying Party fails to assume and continually maintain the defense of the Third Party Claim within seven days after the Indemnifying Party’s receipt of the Notice, the Indemnified Party may assume sole control of defense or settlement is only for cash of such claim at the sole cost and includes a full release expense of the Indemnifying Party. Without limitationNew Age Beverages Corporation 2400 00xx Xxxxxx Xxxxxx, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.XX 00000
Appears in 1 contract
Samples: Agreement and Plan of Merger (New Age Beverages Corp)
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.. 12 of 18Initials: _____, _____, _____, ____
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its the Indemnifying Party's sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if if: (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, and (ii) the third party seeks monetary Damages solely; provided, however, that such acknowledgment shall not be deemed or construed as any admission of the Indemnifying Party with respect to such underlying third party claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expenseexpense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest with the Indemnified Party). If a third party seeks monetary Damages solely and the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom as provided in this Section 8.4 within 30 days after the date such that the Indemnified Party has given notice of the claim is madeto the Indemnifying Party: (a) the Indemnified Party may defend against such claim or litigation in such manner as she or it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, litigation on such terms as the Indemnified Party may deem appropriate; provided, however, that any admission by the Indemnified Party in settling any such claim or litigation shall not be deemed to be an admission for any purpose by the Indemnifying Party; and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If a third party does not seek monetary Damages solely: (x) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate; provided that the Indemnified Party shall not consent to any settlement, compromise or adjustment, or the entry of any judgment arising from such claim or litigation without the prior written consent of the Indemnifying Party thereafter seeks to question the manner in (which the Indemnified Party defended such third-party claim consent shall not be unreasonably withheld or the amount or nature of any such settlement, delayed); and (y) the Indemnifying Party shall have be entitled to participate in (but not control) the burden to prove by a preponderance defense of the evidence that the Indemnified Party did not defend such action with his or settle such third party claim in a reasonably prudent mannerits counsel and at his or its expense.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall thereafter be entitled to participate in and assume control of the defense of any such action if the Indemnified Party has a reasonable basis for concluding that its interests would be better served. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party or the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Asset Purchase Agreement (Airport Systems International Inc)
Defense by the Indemnifying Party. In connection with any claim which may give giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding Legal Proceeding by a person Person other than the Indemnified Partyindemnified party, the Indemnifying Party, indemnifying party at its sole cost and expense, expense may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within 10 calendar days after the indemnifying parties receipt of notice of such claim, assume the defense of any such claim or legal proceeding if Legal Proceeding provided that the Indemnifying Party indemnifying party acknowledges to the Indemnified Party in writing the its obligation of the Indemnifying Party to indemnify the Indemnified Party with indemnified party in respect to all elements of such claimthe entire amount of the claims asserted therein. If the Indemnifying Party indemnifying party assumes the defense of any such claim or legal proceedingLegal Proceeding, the Indemnifying Party indemnifying party shall select counsel reasonably acceptable to the Indemnified Party indemnified party to conduct the defense of such claims or legal proceedings Legal Proceedings and at the its sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceedingLegal Proceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayedwithheld) unless the indemnifying party admits in writing its liability and agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement is only for cash and includes a concurrently with such settlement the indemnifying party pays into court the full release amount of the Indemnifying Party. Without limitationall losses, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplateddamages, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required expenses and liabilities to be paid by the Indemnified Partyindemnifying party in connection with such settlement. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expenseexpense and shall be entitled to any and all information and documentation relating thereto. If the Indemnifying Party indemnifying party does not assume (or continue to diligently and competently prosecute) the defense of any such claim or litigation Legal Proceeding resulting therefrom within 30 days after in accordance with the date such claim is made: (a) terms hereof, the Indemnified Party indemnified party may defend against such claim or litigation Legal Proceeding in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigationLegal Proceeding, after giving notice of the same to the Indemnifying Partyindemnifying party, on such terms as the Indemnified Party indemnified party may deem appropriate. In any action by the indemnified party seeking indemnification from the indemnifying party in accordance with the provisions of this Section 9.5, and (b) the Indemnifying Party indemnifying party shall not be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party indemnified party defended such third-party claim Legal Proceeding or the amount of or nature of any such settlement; provided that such limitations shall not apply to claims of fraud, bad faith, gross negligence or willful misconduct by the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent mannerindemnified party.
Appears in 1 contract
Defense by the Indemnifying Party. In (a) Subject to Section 8.4(b), in connection with any claim which may give rise to indemnity for indemnification hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Partythird party, the Indemnifying Party, Party at its sole cost and expense, expense may, upon written notice to the Indemnified PartyParty given within 10 days after the date of the notice of the claim from the Indemnified Party pursuant to Section 8.3, assume the defense of any such claim or legal proceeding with counsel approved by the Indemnified Party, which approval shall not be unreasonably withheld, if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party Party's obligations to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only, and (iii) an adverse resolution of the third party's claim would not have a Material Adverse Effect on the goodwill or the reputation of the Indemnified Party, the NMC Business or the CMS Business or the future conduct of the business of the Indemnified Party, the NMC Business or the CMS Business. If the Indemnifying Party so assumes the defense of any such claim or legal proceedingdefense, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such actiondefense, with its own counsel and at its own expense. In addition, if the Indemnifying Party so assumes such defense, it shall take all steps necessary in the defense or settlement thereof. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: legal proceeding, (aA) the Indemnified Party may defend against such claim or litigation legal proceeding (with the Indemnifying Party responsible for the reasonable fees and expenses of counsel for the Indemnified Party) in such manner as it may deem appropriate, including, including but not limited to, to settling such claim or litigation, after giving notice of the same to the Indemnifying Party, legal proceeding on such terms as the Indemnified Party may deem appropriate, and (bB) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If The party controlling the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature defense of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim pursuant to this Section 8.4 shall keep the other party advised of the status of such action, suit or proceeding and the defense thereof and shall consider in a reasonably prudent mannergood faith recommendations made by the other party with respect thereto.
Appears in 1 contract
Defense by the Indemnifying Party. (a) In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its his sole cost and expense, expense may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 ten (10) days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party party did not defend or settle such third party claim in a reasonably prudent manner.. All references herein to the Indemnifying Party shall mean, with respect to the Stockholders, the Stockholders' Representative
Appears in 1 contract
Samples: Plan and Agreement of Merger (Focus Enhancements Inc)
Defense by the Indemnifying Party. (a) In connection with any claim solely for monetary damages which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified PartyThird Party Claim, the Indemnifying Party, at its the sole cost and expense, mayexpense of the Indemnifying Party, upon written notice given to the Indemnified PartyParty that the Indemnifying Party shall conduct the defense actively and diligently, the Indemnifying Party may assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimproceeding. If the Indemnifying Party assumes the defense of any such claim or legal proceedingproceeding pursuant to this Section 11.3(a), the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and and, at the sole cost and expense of the Indemnifying Party Party, shall take all steps it reasonably deems necessary or appropriate in the defense or settlement thereof. The ; provided that the Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without obtain the prior written consent of the Indemnified Party before entering into any settlement of a claim or ceasing to defend such claim if (which consent shall not be unreasonably withheld x) pursuant to or delayed) unless the as a result of such settlement is only for cash and includes a full release of the Indemnifying Party. Without limitationor cessation, it shall not be deemed unreasonable to withhold consent to a settlement if injunctive or other equitable relief will be imposed against the Indemnified Party is contemplatedParty, awarded or stipulated, (y) if such settlement does not involve expressly and unconditionally release the Indemnified Party is required from all liabilities and obligations with respect to make an admission of civil liability or such claim, without prejudice. If the Indemnifying Party assumes the defense pursuant to this Section 11.3(a), the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume (or is not permitted to assume) the defense of any such claim or litigation resulting therefrom within 30 fifteen (15) days after the date it receives notice of such claim is madefrom the Indemnified Party: (a1) the Indemnified Party may shall defend against such claim or litigation at the Indemnifying Party’s expense in such manner as it may deem necessary or appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same litigation (subject to the Indemnifying Partylast sentence of Section 11.2(a)), on such terms as the Indemnified Party may deem appropriate, and (b2) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. In connection with any claim other than solely for monetary damages which may give rise to indemnity hereunder, the Indemnified Party shall have the option to assume the defense of such claim or litigation upon written notice to the Indemnifying Party within fifteen (15) days after the Indemnified Party becomes aware of such claim and (A) if the Indemnified Party so exercises such option, it shall defend against such claim or litigation at the Indemnifying Party’s expense in such manner as it may deem necessary or appropriate, including, but not limited to, settling such claim or litigation (subject to the last sentence of Section 11.2(a)), on such terms as the Indemnified Party may deem appropriate, and (B) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party had the option to conduct the defense of such Third Party Claim pursuant to this Section 11 and thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim Third Party Claim in a reasonably prudent manner. If the Indemnified Party settles or compromises such Third Party Claim without the consent of the Indemnifying Party and the Indemnifying Party shall not have had the option to conduct the defense of such Third Party Claim pursuant to this Section 11, such settlement or compromise shall not affect in any way the right of the Indemnifying Party to contest its obligation to indemnify Indemnified Party with respect to such claim pursuant to this Agreement or otherwise, including the right to contest the litigation strategy of the Indemnified Party, the cost of counsel selected by the Indemnified Party, or whether such settlement or compromise was materially affected by Parent’s existing relationship with the third party claimant.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, 36 without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Stock Purchase Agreement (Uici)
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity for --------------------------------- indemnification hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Partythird party, the Indemnifying Party, Party at its sole cost and expense, expense may, upon written notice to the Indemnified PartyParty given within twenty (20) days after the date of the notice of the claim from the Indemnified Party pursuant to Section 6.6, assume the defense of any such claim or legal proceeding with counsel approved by the Indemnified Party, which approval shall not be unreasonably withheld, if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party Party's obligations to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only, and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or the reputation of the Indemnified Party or the future conduct of the business of the Indemnified Party. If the Indemnifying Party so assumes the defense of any such claim or legal proceedingdefense, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such actiondefense, with its own counsel and at its own expense. In addition, if the Indemnifying Party so assumes such defense, it shall take all steps necessary in the defense or settlement thereof; provided, however, that the Indemnifying Party shall not consent to any settlement or to the entry of any judgment with respect to a claim or legal proceeding which does not include a complete release of the Indemnified Party from all liability with respect thereto or which imposes any liability on the Indemnified Party without the written consent of the Indemnified Party. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: legal proceeding, (aA) the Indemnified Party may defend against such claim or litigation legal proceeding (with the Indemnifying Party responsible for the reasonable fees and expenses of counsel for the Indemnified Party) in such manner as it may deem appropriate, including, including but not limited to, to settling such claim or litigation, after giving notice of the same to the Indemnifying Party, legal proceeding on such terms as the Indemnified Party reasonably and in good faith may deem appropriate, and (bB) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Asset Purchase Agreement (Dataware Technologies Inc)
Defense by the Indemnifying Party. (a) In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified PartyThird Party Claim, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice given to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimproceeding. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings (provided that such counsel shall acknowledge in writing to the Indemnifying Party and the Indemnified Party that in conducting such defense it is representing both the Indemnifying Party and the Indemnified Party; and that if such counsel subsequently determines that there is a conflict of interest in continuing to represent both the Indemnifying Party and the Indemnified Party, such counsel shall notify such parties, in which event the Indemnified Party shall be entitled to participate in such defense with its own counsel). The reasonable fees of the counsel selected by the Indemnified Party in accordance with the preceding sentence shall be at the sole cost and expense of the Indemnifying Party shall take all steps necessary in if it is finally determined that the defense or settlement thereofIndemnifying Party is responsible for such claim. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, proceeding without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) ), unless the such settlement is only for cash and or judgement includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified from such Third Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified PartyClaim. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 twenty (20) days after the date it receives written notice of such claim is madefrom the Indemnified Party: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem necessary or appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same litigation (subject to the Indemnifying Partylast sentence of Section 2.3), on such terms as the Indemnified Party may reasonably deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim Third Party Claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Indemnification Agreement (Geac Computer Systems Inc)
Defense by the Indemnifying Party. In connection with any claim which may give giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding Legal Proceeding by a person other than the Indemnified Partyindemnified party, the Indemnifying Party, indemnifying party shall have the right to participate in or at its sole cost and expense, expense may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within 10 calendar days after the indemnifying parties receipt of notice of such claim, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimLegal Proceeding. If the Indemnifying Party indemnifying party assumes the defense of any such claim or legal proceedingLegal Proceeding, the Indemnifying Party indemnifying party shall select counsel reasonably acceptable to the Indemnified Party indemnified party to conduct the defense of such claims or legal proceedings Legal Proceedings and at the its sole cost and expense of the Indemnifying Party shall take all steps reasonably necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceedingLegal Proceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayedwithheld) unless the settlement is only for cash indemnifying party admits in writing its liability and includes a full release agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Partysuch settlement. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expenseexpense and shall be entitled to any and all information and documentation relating thereto. If the Indemnifying Party indemnifying party does not assume (or continue to diligently and competently prosecute) the defense of any such claim or litigation Legal Proceeding resulting therefrom within 30 days after in accordance with the date such claim is made: (a) terms hereof, the Indemnified Party indemnified party may defend against such claim or litigation Legal Proceeding in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigationLegal Proceeding, after giving reasonable advance notice of the same to the Indemnifying Partyindemnifying party, on such terms as the Indemnified Party indemnified party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give giving rise to indemnity hereunder under this Section 10 resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified PartyParty (a "Third Party Claim"), the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, Party assume the defense of any such claim or legal proceeding if Third Party Claim, provided that the Indemnifying Party acknowledges to the Indemnified Party in writing the its obligation of the Indemnifying Party to indemnify the Indemnified Party with in respect to all elements of such claimthe claims asserted therein. If the Indemnifying Party assumes the defense of any such claim or legal proceedingThird Party Claim, the Indemnifying Party shall select counsel that is reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings Third Party Claim and at the its sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) withheld), unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable Party admits in writing its liability to withhold consent to a settlement if equitable relief against hold the Indemnified Party is contemplatedharmless from and against any losses, awarded or stipulateddamages, expenses and liabilities arising out of such settlement and concurrently with such settlement the Indemnified Indemnifying Party is required to make an admission pays the full amount of civil liability or to the commission of a crimeall losses, or money is required damages, expenses and liabilities to be paid by the Indemnifying Party (or by the Indemnified Party, if applicable) in connection with such settlement. The Indemnified Party shall cooperate fully in the defense of any such claim or action by taking such actions as the Indemnifying Party may reasonably request. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, thereof with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after in accordance with the date such claim is made: (a) terms hereof, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) . The Indemnifying Party shall cooperate fully in the defense of any such claim or litigation by taking such action as the Indemnified Party may reasonably request. The Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, thereof with its own counsel and at its own expense. If Notwithstanding any of the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementforegoing, the Indemnifying Party shall have the burden right to prove by a preponderance assume the defense of the evidence that the Indemnified any Third Party did not defend or settle such third party claim in a reasonably prudent mannerClaim at any time.
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Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out Within fifteen (15) days after receipt of any claim or legal proceeding by a person other than the Indemnified PartyNotice, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Third Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimClaim. If the Indemnifying Party timely assumes the defense of any such claim or legal proceedingThird Party Claim, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and Third Party Claim and, at the sole cost and expense of the Indemnifying Party, the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall be entitled to participate in (but not control) the defense of any Third Party Claim, with its own counsel and at its own expense; provided, however, that if the named parties to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, Third Party Claim without the prior written consent of the Indemnified Party (Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume fails to give the Indemnified Party written notice within fifteen (15) days after the Indemnifying Party's receipt of the Notice that the Indemnifying Party is assuming the defense of any such claim Third Party Claim or litigation resulting therefrom if the Indemnifying Party fails to assume and continually maintain the defense of the Third Party Claim within 30 fifteen (15) days after the date such claim is made: (a) Indemnifying Party's receipt of the Notice, the Indemnified Party may defend against assume sole control of defense or settlement of such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice at the sole cost and expense of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim Third Party Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim Third Party Claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. (a) In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified PartyThird Party Claim, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice given to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimproceeding. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and and, at the sole cost and expense of the Indemnifying Party Party, shall take all steps it deems necessary or appropriate in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, proceeding without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless such settlement or judgment (i) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitationIndemnified Party from such Third Party Claim, it shall (ii) does not be deemed unreasonable to withhold consent to a settlement if equitable relief against contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party is contemplatedParty, awarded and (iii) does not contain any equitable order, judgment or stipulatedterm which in any manner affects, restrains or interferes with the Indemnified Party is required to make an admission business of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 ten (10) days after the date it receives written notice of such claim is madefrom the Indemnified Party: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem necessary or appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same litigation (subject to the Indemnifying Partysecond to last sentence of this Section 8.4), on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim Third Party Claim in a reasonably prudent manner. The Indemnified Party shall not settle or compromise any claim by a third party for which it is entitled to indemnification hereunder without the prior written consent, which shall not be unreasonably withheld or delayed, of the Indemnifying Party; provided, however, that if suit shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within ten (10) days after notification thereof, as provided in Section 12 of this Agreement, the Indemnified Party shall have the right to settle or compromise such claim upon giving notice to the Indemnifying Party so long as such settlement includes a full release of the Indemnifying Party from such Third Party Claim.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Securities Purchase Agreement (Biophan Technologies Inc)
Defense by the Indemnifying Party. In connection with any claim --------------------------------- which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimproceeding. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date on which notice of such claim is madereceived: (a) the Indemnified Party may may, at the Indemnifying Party's sole expense (payable as incurred and on demand) defend against such claim or litigation as set forth in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigationSection 10.3, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding Legal Proceeding by a person Person other than the Indemnified Partyindemnified party, the Indemnifying Party, indemnifying party at its sole cost and expense, expense may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within 10 calendar days after the indemnifying parties receipt of notice of such claim, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claimLegal Proceeding. If the Indemnifying Party indemnifying party assumes the defense of any such claim or legal proceedingLegal Proceeding, the Indemnifying Party indemnifying party shall select counsel reasonably acceptable to the Indemnified Party indemnified party to conduct the defense of such claims or legal proceedings Legal Proceedings and at the its sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceedingLegal Proceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayedwithheld) unless the indemnifying party admits in writing its liability and agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement is only for cash and includes a concurrently with such settlement the indemnifying party pays into court the full release amount of the Indemnifying Party. Without limitationall losses, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplateddamages, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required expenses and liabilities to be paid by the Indemnified Partyindemnifying party in connection with such settlement. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expenseexpense and shall be entitled to any and all information and documentation relating thereto. If the Indemnifying Party indemnifying party does not assume (or continue to diligently and competently prosecute) the defense of any such claim or litigation Legal Proceeding resulting therefrom within 30 days after in accordance with the date such claim is made: (a) terms hereof, the Indemnified Party indemnified party may defend against such claim or litigation Legal Proceeding in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigationLegal Proceeding, after giving notice of the same to the Indemnifying Partyindemnifying party, on such terms as the Indemnified Party indemnified party may deem appropriate. In any action by the indemnified party seeking indemnification from the indemnifying party in accordance with the provisions of this Section 9.5, and (b) the Indemnifying Party indemnifying party shall not be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party indemnified party defended such third-party claim Legal Proceeding or the amount of or nature of any such settlement; provided that such limitations shall not apply to claims of fraud, bad faith, gross negligence or willful misconduct by the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent mannerindemnified party.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall thereafter be entitled to participate in and assume control of the defense of any such action if the Indemnified Party has a reasonable basis for concluding that its interests would be better served. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and shall, at the its sole cost and expense of the Indemnifying Party shall expense, take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without other than the prior written consent payment of money, unless such settlement includes a release of the Indemnified Party (which consent shall not be unreasonably withheld from any and all claims arising from or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable related to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded such claim or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Partylegal proceeding. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 thirty (30) days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, Party on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner. In the event that the Company's stockholders constitute the Indemnifying Party, all references herein to the Indemnifying Party shall be deemed to mean the Stockholders' Representatives, who shall have the power and authority to bind the Company and all of the Company's stockholders. All costs and expenses to be borne by the Indemnifying Party, if the Indemnifying Party is the Company, shall be borne severally by each of the Company's stockholders.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Critical Path Inc)
Defense by the Indemnifying Party. In connection with any claim --------------------------------- which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the his or its obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceedingproceedings, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle settlement such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. In connection with any claim which may give giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding Legal Proceeding by a person other than the Indemnified Partyindemnified party, the Indemnifying Party, indemnifying party at its sole cost and expense, expense may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within 10 calendar days after the indemnifying parties receipt of notice of such claim, assume the defense of any such claim or legal proceeding if Legal Proceeding provided that the Indemnifying Party indemnifying party acknowledges to the Indemnified Party in writing the its obligation of the Indemnifying Party to indemnify the Indemnified Party with indemnified party in respect to all elements of such claimthe entire amount of the claims asserted therein. If the Indemnifying Party indemnifying party assumes the defense of any such claim or legal proceedingLegal Proceeding, the Indemnifying Party indemnifying party shall select counsel reasonably acceptable to the Indemnified Party indemnified party to conduct the defense of such claims or legal proceedings Legal Proceedings and at the its sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceedingLegal Proceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayedwithheld) unless the indemnifying party admits in writing its liability and agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement is only for cash and includes a concurrently with such settlement the indemnifying party pays into court the full release amount of the Indemnifying Party. Without limitationall losses, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplateddamages, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required expenses and liabilities to be paid by the Indemnified Partyindemnifying party in connection with such settlement. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expenseexpense and shall be entitled to any and all information and documentation relating thereto. If the Indemnifying Party indemnifying party does not assume (or continue to diligently and competently prosecute) the defense of any such claim or litigation Legal Proceeding resulting therefrom within 30 days after in accordance with the date such claim is made: (a) terms hereof, the Indemnified Party indemnified party may defend against such claim or litigation Legal Proceeding in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigationLegal Proceeding, after giving notice of the same to the Indemnifying Partyindemnifying party, on such terms as the Indemnified Party indemnified party may deem appropriate. In any action by the indemnified party seeking indemnification from the indemnifying party in accordance with the provisions of this Section 9.5, and (b) the Indemnifying Party indemnifying party shall not be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party indemnified party defended such third-party claim Legal Proceeding or the amount of or nature of any such settlement; provided that such limitations shall not apply to claims of fraud, bad faith, gross negligence or willful misconduct by the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent mannerindemnified party.
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Defense by the Indemnifying Party. In connection with any claim --------------------------------- which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
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