Defense. An indemnifying Party shall, except as provided in the immediately following sentence and the last sentence of this paragraph, assume the defense of such Claim, with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4.
Appears in 1 contract
Samples: Master Agreement (Sabre Corp)
Defense. An indemnifying (i) In the case of a third party claim, the Indemnifying Party shall, except as provided may participate in the immediately following sentence defense thereof and, if it so chooses and irrevocably acknowledges its obligation to indemnify the last sentence of this paragraphIndemnified Party therefor, assume control the defense of such Claim, an Indemnifiable Claim with counsel reasonably satisfactory to the indemnified Indemnified Party; provided, however, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with respect to represent the indemnified Party in such proceeding claim or its defense exists or is likely to develop during the pendency of the litigation, and shall pay the fees and disbursements as a result of such counsel related conflict, the Indemnifying Party’s incentive to defend such proceedingclaim could reasonably be expected to be materially compromised, or (y) the claim raises serious issues regarding the integrity or moral character of the Indemnified Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the Indemnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party’s rights as set forth in this clause (y). In any such proceedingall cases, any indemnified Party shall have the party without the right to retain its own counsel and control the defense of the Indemnifiable Claim may participate in the defense at its own expense. In the case of such Claima third party claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Indemnifying Party shall have mutually agreed inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to control the retention of such counsel; or (ii) defense and irrevocably acknowledges its obligation to indemnify the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Indemnified Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between themtherefor. It is agreed that the indemnifying The Indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the parties shall endeavor in addition good faith to any local counsel) for all settle such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurreddispute. The indemnifying Indemnifying Party shall not be liable for any settlement of any settle or compromise a third party claim or legal proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Indemnified Party, effect which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any settlement Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Substances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of any pending third party claim or threatened proceeding litigation resulting therefrom within 20 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in respect such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of which the limitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any indemnified Party is uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; Purchaser, the parties will (A) involves any form cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of relief other than the payment of moneySeller Indemnitors or Purchaser, (B) involves any finding or admission until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any violation of any Law or any of the rights of any Person or such Indemnifiable Claim and how such defense and settlement will be handled, (C) has cooperate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out-of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties’ respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense, including any adverse effect on any other Claims that have been or joint defense agreement which may be made against entered into by the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4parties.
Appears in 1 contract
Defense. An indemnifying If any claim against an Indemnified Party shallshall arise by reason of any claim made by third parties against it, except as provided in the immediately following sentence and the last sentence of this paragraph, assume the defense of such Claim, with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Indemnifying Party shall have the right to retain assume the defense of the matter giving rise to the claim for indemnification through counsel of its selection reasonably acceptable to the Indemnified Party at the Indemnifying Party's expense, and the Indemnified Party shall have the right, at its own expense, to employ counsel to represent it, which counsel shall act in an advisory capacity only. The Indemnified Party shall cooperate fully to make available to the Indemnifying Party all pertinent information under the Indemnified Party's control as to the claim and participate in shall make its appropriate personnel, if any, available for any discovery, trial or appeal. If the Indemnifying Party fails or refuses to undertake the defense within 30 days after receiving the indemnification notice, the Indemnified Party shall have the right to assume the defense of such Claim, but matter on behalf of and for the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect account of the legal expense of any indemnified Indemnifying Party; provided, however, that unless the Indemnifying Party in connection with any proceeding or related proceedings in has refused to undertake the same jurisdictiondefense, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Indemnified Party shall not be liable for settle or compromise any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, claim without the prior written consent of the indemnified Indemnifying Party, effect which consent shall not be unreasonably withheld or delayed. The Indemnifying Party may settle without the consent of the Indemnified Party any settlement of claim for money at any pending or threatened proceeding in respect of which any indemnified time, if at its sole expense and if there is no adverse impact on the Indemnified Party, no fault is assessed against the Indemnified Party and the Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of unconditionally released from all further potential liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4connection therewith.
Appears in 1 contract
Samples: Option and Stock Purchase Agreement (Radio One Inc)
Defense. An indemnifying If any Action that might reasonably be expected to result in an Indemnifiable Claim is asserted or threatened by a third party against any Indemnified Party, the Indemnifying Party shall, except as provided in the immediately following sentence and the last sentence of this paragraph, assume may elect to control the defense of such Claim, thereof with experienced counsel reasonably satisfactory to the indemnified Party to represent Indemnified Party. Notwithstanding the indemnified Party in such proceeding and shall pay foregoing, if the fees and disbursements Indemnifying Party, within fifteen (15) days after receipt of a notice of such counsel related Action fails to give written notice to the Indemnified Party that the Indemnifying Party shall undertake the defense thereof or thereafter fails to timely assume such proceeding. In any such proceedingdefense, any indemnified then the Indemnified Party shall have the right to retain its own counsel defend, compromise or settle the Action for the account of the Indemnifying Party. An assertion by the Indemnifying Party of a reservation of rights with respect to such Action shall not constitute a failure to give written notice that it shall undertake such defense. If, after the Indemnifying Party has undertaken the defense of the Action, the Indemnified Party reasonably believes (and gives notice thereof to the Indemnifying Party) that an Indemnifiable Claim may materially adversely affect the business or operations of the Indemnified Party, then the Indemnified Party shall have the right to participate in the defense of such Claimthe Action at its own expense, but subject to the fees and expense reasonable direction of such counsel shall be at the expense other party. Each of such indemnified Party unless: (i) the indemnifying Indemnifying Party and the indemnified Indemnified Party shall have mutually agreed give all reasonable assistance to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party other party in connection with therewith. In any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiffcase, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Indemnified Party shall, without subject to Section 10.10, make available to the prior written consent of Indemnifying Party and its attorneys, accountants, employees, agents, advisors and consultants, at reasonable times during normal business hours, all books, records, documents, employees, agents, advisors and consultants under its control and relating to such Action or such other matter as to which the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Indemnified Party is or could have been a was required to give notice. The party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume having control of the defense of any Claim: (1) if an Action shall notify the other party of every proposal, oral or written, for settlement, which it irrevocably waives its right to indemnity under this Section 20, receives or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4makes.
Appears in 1 contract
Defense. An indemnifying Party If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the Indemnitee shall promptly give a Notice to the Indemnitor of such Proceeding. The Indemnitor shall, except as provided in at its own expense, have the immediately following sentence opportunity to be represented by counsel of its choosing and to assume and conduct the last sentence defense of this paragraphany such Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, after such opportunity, the Indemnitor or its counsel does not assume the defense of any such Proceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Indemnitor shall be deemed to have elected not to assume the defense of such ClaimProceeding, with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party and in such proceeding and shall pay event the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall Indemnitee will have the right to retain its own counsel and participate in conduct such defense. In the event that the Indemnitor does elect to assume the defense of such ClaimProceeding, but the fees Indemnitee will cooperate with and expense of make available to the Indemnitor such counsel shall assistance and materials as may be reasonably requested by it at no cost to the expense of such indemnified Party unless: (i) the indemnifying Party Indemnitor, and the indemnified Party shall Indemnitee will have mutually agreed the right at its expense to participate in the retention of such counseldefense; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed provided, however, that the indemnifying Party shall not, in respect of Indemnitee will have the legal expense of any indemnified Party in connection right to compromise or settle such Proceeding only with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of Indemnitor which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may shall not be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4unreasonably withheld.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Detrex Corporation)
Defense. An indemnifying Party shallPromptly after receipt by an Indemnified Person of notice of any claim or demand or the commencement of any suit, except as provided action or proceeding by any third party with respect to which indemnification may be sought hereunder, such Indemnified Person shall notify in writing the immediately following sentence and Indemnitor of such claim or demand or the last sentence commencement of this paragraphsuch suit, action or proceeding, but failure so to notify the Indemnitor shall not relieve the Indemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be actually prejudiced by such failure. If the Indemnitor shall so elect, the Indemnitor shall assume the defense of such Claimclaim, with demand, action, suit or proceeding, including the employment of counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding Indemnified Person, and shall pay the fees and disbursements of such counsel. In the event, however, that such Indemnified Person shall reasonably determine that having common counsel related would present such counsel with a conflict of interest or alternative defenses shall be available to an Indemnified Person or if the Indemnitor shall fail to assume the defense of the claim, demand, action, suit or proceeding in a timely manner, then such Indemnified Person may employ separate counsel to represent or defend such Person against any such claim, demand, action, suit or proceeding and the Indemnitor shall pay the reasonable fees and disbursements of such counsel; provided, however, that the Indemnitor shall not be required to pay the fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single action, suit or proceeding. In For any such proceedingclaim, any indemnified Party demand, action, suit or proceeding the defense of which the Indemnitor shall assume, the Indemnified Person shall have the right to participate therein and to retain its own counsel and participate at such Indemnified Person's own expense (except as otherwise specifically provided in this Section 12.4), so long as such participation does not interfere with the defense Indemnitor's control of such Claimclaim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; demand, action, suit or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between themproceeding. It is agreed that the indemnifying Party The Indemnitor shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified PartyIndemnified Person, effect settle or compromise or consent to the entry of any settlement of judgment in any pending or threatened claim, action, suit or proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been indemnification may be sought hereunder by such indemnified Party: (x) if unless such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding compromise or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes consent shall include an unconditional release of such indemnified Party of Indemnified Person from all liability on claims that are the subject arising out of such proceeding. An indemnified Party may assume control of claim, demand, action, suit or proceeding and would not prohibit, restrict or impair the defense of Indemnified Person from engaging in any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4business.
Appears in 1 contract
Samples: Stock Purchase Agreement (Pharmaceutical Resources Inc)
Defense. An indemnifying If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor shall, except as provided in by giving written notice to the immediately Indemnified Party within 15 days following sentence and its receipt of the last sentence notice of this paragraphsuch claim, assume the defense or the prosecution thereof, including the employment of such Claimcounsel or accountants, with counsel reasonably satisfactory to the indemnified Indemnified Party, at its cost and expense; PROVIDED, HOWEVER that during the interim the Indemnified Party shall use its best efforts to represent take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceedingLoss. In any such proceeding, any indemnified The Indemnified Party shall have the right to retain its own employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in the defense of such Claimtherein, but the fees and expense expenses of such counsel shall be at the expense Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such indemnified counsel it is advisable for such Indemnified Party unless: to employ separate counsel, or (ic) the indemnifying Party Indemnity Obligor has failed to assume the defense of such action and the indemnified Party shall have mutually agreed employ counsel reasonably satisfactory to the retention of Indemnified Party. Whether or not the Indemnity Obligor defends or prosecutes such counsel; claim, all the parties hereto shall cooperate in the defense or (ii) the named Parties to any prosecution thereof and shall furnish such proceeding (including any impleaded parties) include both the indemnifying Party records, information and the indemnified Party testimony and representation of both Parties by the same counsel would shall attend such conferences, discovery proceedings and trial as may be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party reasonably requested in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurredtherewith. The indemnifying Party Indemnity Obligor shall not be liable for any settlement of any proceeding such claim effected without its prior written consent, but if settled . In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with such consent or if there is any Loss arising out of a final judgment for the plaintiffThird Party Claim, the indemnifying Party agrees Indemnity Obligor shall be subrogated to indemnify and shall stand in the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent place of the indemnified Party, effect Indemnified Party as to any settlement of any pending events or threatened proceeding circumstances in respect of which the Indemnified Party may have any indemnified Party is right or could have been a claim against such third party and indemnity could have been sought hereunder by relating to such indemnified Party: (x) if such settlement; (A) involves matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any form of relief other than subrogated claim. The Mr. Xxxxxxx Xxxxx Entertainment Blvd. July 30, 1999 Page 4 Indemnity Obligor will take no action in connection with any claim that would adversely affect the payment of money, (B) involves any finding or admission of any violation of any Law or any Indemnified Party without the consent of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4.
Appears in 1 contract
Defense. An indemnifying If the facts pertaining to a Loss by a Buyer Indemnified Party shallor a Company Indemnified Party, except as provided in the immediately following sentence and case may be, arise out of the last sentence claim of this paragraphany third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the applicable Indemnifying Party may assume the defense or the prosecution thereof by written notice to such Buyer Indemnified Party or Seller Indemnified Party, including the employment of such Claim, with counsel or accountants reasonably satisfactory to such Buyer Indemnified Party or Seller Indemnified Party, at the indemnified Indemnifying Party's cost and expense. Such Buyer Indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified or Seller Indemnified Party shall have the right to retain its own employ counsel separate from counsel employed by such Indemnifying Party in any such action and to participate in the defense of such Claimtherein, but the fees and expense expenses of such counsel employed by such Buyer Indemnified Party or Seller Indemnified Party shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurredits expense. The indemnifying Indemnifying Party shall not be liable for any settlement of any proceeding such claim effected without its prior written consent, but if settled with such consent or if there is which shall not be unreasonably withheld. The Indemnifying Party shall not agree to a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against settlement of any Losses by reason of such settlement or judgment. No indemnifying Party shall, claim without the prior written consent of the indemnified Buyer Indemnified Party or Seller Indemnified Party, effect any settlement of any pending as the case may be, which consent will not be unreasonably withheld. Whether or threatened proceeding not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in respect of which any indemnified the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party is or could have been a party shall be subrogated to all rights and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any remedies of the rights of any Person Buyer Indemnified Party or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Seller Indemnified Party, or (y) if such settlement involves only as the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party case may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4be.
Appears in 1 contract
Defense. An If any of the indemnified parties is made or threatened ------- to be made a defendant in or party to any action or proceeding, judicial or administrative, instituted by any third Person for the liability under which or the costs or expenses of which any of the indemnified parties is entitled to be indemnified pursuant to Paragraph 18 (any such third party action or proceeding being referred to as an "Indemnification Claim"), the indemnified party or parties shall give prompt notice thereof to the indemnifying Party shallparty; provided -------- that the failure to give such notice shall not affect the indemnified party or parties' ability to seek indemnification hereunder unless such failure has materially and adversely affected the indemnifying party or parties' ability to prosecute successfully an Indemnification Claim. Each indemnified party shall permit the indemnifying party, except as provided in the immediately following sentence and the last sentence of this paragraphat its own expense, to assume the defense of any such Claimclaim or any litigation to which this Paragraph 18.4 may be applicable, with by counsel reasonably satisfactory to the indemnified Party to represent party or parties; provided, -------- that the indemnified Party party or parties shall be entitled at any time, at its or their own cost and expense (which expense shall not be recoverable from the indemnifying party unless the indemnifying party is not adequately representing or, because of a conflict of interest, may not adequately represent, the indemnified party or parties' interests), to participate in such claim, action or proceeding and shall pay to be represented by attorneys of its or their own choosing. If the fees and disbursements indemnified party or parties elects to participate in such defense, such party or parties will cooperate with the indemnifying party in the conduct of such counsel related to such proceedingdefense. In The indemnified party or parties may not concede, settle or compromise any such proceedingIndemnification Claim without the consent of the indemnifying party. The indemnifying party, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual claim or potential differing interests between them. It is agreed that the indemnifying Party litigation, shall not, in respect except with the approval of the legal expense each indemnified party, consent to entry of any indemnified Party in connection with judgment or enter into any proceeding settlement which does not include as an unconditional term thereof the giving by the claimant or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition plaintiff to any local counsel) for all such indemnified Parties party or parties of a full and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party complete release from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with in respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it claim or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4litigation.
Appears in 1 contract
Samples: Asset Assignment Agreement (Fox Kids Worldwide Inc)
Defense. An indemnifying Party shall, except Except as provided in Section 11.6, if within 10 calendar days after an Indemnitee provides Notice to the immediately following sentence and Indemnifying Party of any Third Party Claim the last sentence of this paragraph, Indemnitee receives Notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim, the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with counsel reasonably satisfactory the defense thereof. The Indemnitee shall be entitled to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but Third Party Claim and to employ counsel for such purpose at the fees sole cost and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Indemnitee. Each Party shall have mutually agreed to in good faith consult with the retention of such counsel; or (ii) other Party regarding the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense defense of any indemnified Third Party in connection with any proceeding or related proceedings in Claim upon the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition other Party’s reasonable request from time to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurredtime. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without Without the prior written consent of the indemnified PartyIndemnitee, effect the Indemnifying Party will not enter into any settlement of any pending Third Party Claim which would lead to liability or threatened proceeding in respect of which create any indemnified Party is financial or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than obligation on the payment of money, (B) involves any finding or admission of any violation of any Law or any part of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against Indemnitee for which the indemnified PartyIndemnitee is not entitled to indemnification hereunder, or which would impose any injunctive or other equitable remedy on the Indemnitee. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder (yor which would not impose any injunctive or other equitable remedy on the Indemnitee) if and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give Notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within 10 calendar days after its receipt of such Notice, the Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party to such Third Party Claim will be the amount of such settlement involves only offer, plus reasonable costs and expenses paid or incurred by the payment of money, unless it includes an unconditional release Indemnitee up to the date of such indemnified Party of all liability on claims that are the subject of such proceedingnotice. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially Purchase and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4.Sale Agreement — Project Gemini [Great Lakes Businesses]
Appears in 1 contract
Defense. An indemnifying So long as the conditions set forth in Section 8.4(a)(i) for the Indemnifying Party shall, except as provided in the immediately following sentence and the last sentence of this paragraph, to assume the defense of a Third Party Claim are and remain satisfied and the Indemnifying Party is vigorously defending such Third Party Claim, with counsel reasonably satisfactory to the indemnified Indemnifying Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in may conduct the defense of such the Third Party Claim to the extent permitted by this Agreement. The Indemnified Party may retain separate co-counsel at its sole cost and expense to represent it in connection with the Third Party Claim, but and the fees Indemnifying Party shall cooperate, and expense cause the counsel selected by the Indemnifying Party to cooperate, with such co-counsel in connection with the response, defense and settlement of such the Third Party Claim and any related suit or proceeding. If there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, as advised in writing by outside counsel to the Indemnified Party, for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain one separate counsel in each jurisdiction for which the Indemnified Party reasonably determines counsel is required, which counsel shall be reasonably acceptable to the Indemnifying Party, at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between themIndemnifying Party. It is agreed that the indemnifying The Indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Indemnified Party (which consent shall not be unreasonably withheld or delayed), admit any Liability with respect to, settle, compromise or discharge the Third Party Claim if the admission, settlement, compromise or discharge (i) imposes anything, including the imposition of an injunction or other equitable relief upon the Indemnified Party, effect other than monetary damages fully indemnified and paid by the Indemnifying Party, (ii) does or would reasonably be expected to interfere with or adversely affect the business, operations or assets of the Indemnified Party or any settlement of any pending its Affiliates, (iii) does not include an unconditional provision whereby the plaintiff or threatened proceeding claimant in the matter completely and unconditionally releases the Indemnified Party and its Affiliates from all Liability with respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by to such indemnified Party: matter, with prejudice, (x) if such settlement; (Aiv) involves any form of relief other than Taxes or (v) would result in the payment of money, (B) involves any finding or admission of any violation of any Law or any of Governmental Order by the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of With respect to the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Third Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume party responsible for the defense of the Third Party Claim shall, to the extent reasonably requested by the other party, keep such Claim; other party informed as to the status of such claim, including all settlement negotiations and offers and shall: (A) conduct the defense of the Third Party Claim actively and vigorously and keep the other Party fully informed of material developments in the Third Party Claim at all stages thereof, (B) promptly submit to the other Party copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received or filed in connection therewith, (3C) in case permit the other Party and its counsel to confer on the conduct of Customerthe defense thereof, pursuant and (D) permit the other Party and its counsel an opportunity to Section 20.4review and comment on, which comments the Indemnifying Party shall reasonably consider, all legal papers to be submitted prior to their submission.
Appears in 1 contract
Defense. An indemnifying Party shallWith respect to any Proceeding as to which Indemnitee notifies Tyco International plc and Tyco Management of the commencement thereof, Tyco International plc will be entitled to participate in the Proceeding at its own expense and except as otherwise provided in below, to the immediately following sentence and the last sentence of this paragraphextent Tyco International plc so wishes, it may assume the defense of such Claim, thereof with counsel reasonably satisfactory to Indemnitee. After notice from Tyco International plc to Indemnitee of its election to assume the indemnified Party defense of any Proceeding, Tyco International plc shall not be liable to represent Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the indemnified Party in such proceeding and shall pay the fees and disbursements defense of such counsel related to such proceedingProceeding other than reasonable costs of investigation or as otherwise provided below. In any such proceeding, any indemnified Party Indemnitee shall have the right to retain employ legal counsel in such Proceeding, but all Expenses related thereto incurred after notice from Tyco International plc of its own counsel and participate in assumption of the defense of such Claim, but the fees and expense of such counsel shall be at the Indemnitee’s expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention employment of such counsel; or legal counsel by Indemnitee has been authorized by Tyco International plc, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and Tyco International plc in the named Parties to any such proceeding defense of the Proceeding, (including any impleaded partiesiii) include both after a Change in Control, the indemnifying Party and the indemnified Party and representation employment of both Parties counsel by Indemnitee has been approved by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified PartyIndependent Counsel, or (yiv) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right Tyco International plc shall not in fact have employed counsel to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; Proceeding, in each of which cases all Expenses of the Proceeding shall be borne by Tyco International plc to the fullest extent permitted by law. Tyco International plc shall not be entitled to assume the defense of any Proceeding (x) brought by or on behalf of Tyco Management or Tyco International plc, (y) as to which Indemnitee shall have made the determination provided for in (ii) above or (3z) after a Change in case Control (it being specified, for the avoidance of Customerdoubt, pursuant to that Tyco International plc may assume defense of any such proceeding described in this sentence with Indemnitee’s consent, provided that any such consent shall not affect the rights of Indemnitee under the foregoing provisions of this Section 20.46(b)).
Appears in 1 contract
Defense. An indemnifying If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor shall, except as provided in by giving written notice to the immediately Indemnified Party within 15 days following sentence and its receipt of the last sentence notice of this paragraphsuch claim, assume the defense or the prosecution thereof, including the employment of such Claimcounsel or accountants, with counsel reasonably satisfactory to the indemnified Indemnified Party, at its cost and expense; PROVIDED, HOWEVER, that during the interim the Indemnified Party shall use its best efforts to represent take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceedingLoss. In any such proceeding, any indemnified The Indemnified Party shall have the right to retain its own employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in the defense of such Claimtherein, but the fees and expense expenses of such counsel shall be at the expense Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such indemnified counsel it is advisable for such Indemnified Party unless: to employ separate counsel, or (ic) the indemnifying Party Indemnity Obligor has failed to assume the defense of such action and the indemnified Party shall have mutually agreed employ counsel reasonably satisfactory to the retention of Indemnified Party. Whether or not the Indemnity Obligor defends or prosecutes such counsel; claim, all the parties hereto shall cooperate in the defense or (ii) the named Parties to any prosecution thereof and shall furnish such proceeding (including any impleaded parties) include both the indemnifying Party records, information and the indemnified Party testimony and representation of both Parties by the same counsel would shall attend such conferences, discovery proceedings and trial as may be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party reasonably requested in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurredtherewith. The indemnifying Party Indemnity Obligor shall not be liable for any settlement of any proceeding such claim effected without its prior written consent, but if settled . In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with such consent or if there is any Loss arising out of a final judgment for the plaintiffThird Party Claim, the indemnifying Party agrees Indemnity Obligor shall be subrogated to indemnify and shall stand in the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent place of the indemnified Party, effect Indemnified Party as to any settlement of any pending events or threatened proceeding circumstances in respect of which the Indemnified Party may have any indemnified Party is right or could have been a claim against such third party and indemnity could have been sought hereunder by relating to such indemnified Party: (x) if such settlement; (A) involves matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any form of relief other than subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the payment of money, (B) involves any finding or admission of any violation of any Law or any Indemnified Party without the consent of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4.
Appears in 1 contract
Samples: Letter Agreement (Ultrexx Corp)
Defense. An indemnifying The Indemnified Party shall, except as provided in shall permit the immediately following sentence and the last sentence of this paragraph, Indemnitor to assume the defense of such Claim and any litigation resulting therefrom (and to prosecute by way of counterclaim or third party complaint any claim against such third party arising out of or relating to the Claim in question) upon receipt by the Indemnified Party of the Indemnitor's written acknowledgment of its obligation to indemnify the Indemnified Party with respect to the Claim and agreement to assume the defense of all claims or counts of such Claim. After giving such written agreement, the Indemnitor shall not be liable under this Agreement for any legal or other expenses subsequently incurred by the Indemnified Party in connection with such defense but the Indemnitor shall be responsible for all such expenses incurred by the Indemnified Party in connection with the Claim prior to the assumption of the defense by the Indemnitor. Notwithstanding the foregoing, any Indemnified Party shall be entitled to conduct its own defense at the cost and expense of the Indemnitor if the Indemnified Party can establish, by reasonable evidence, that the conduct of its defense by the Indemnitor would reasonably be likely to prejudice the Indemnified Party due to the nature of any claims or counterclaims presented or by virtue of a conflict between the interest of the Indemnified Party and the Indemnitor, and provided further that in any event the Indemnified Party may participate in such defense at its own expense. Counsel selected by the Indemnitor or by the Indemnified Party to defend any Claim shall be subject to the reasonable approval of the other party. If the Indemnitor fails to assume the defense of any such Claim as provided above within a reasonable time (which shall be such period of time as will not, in the reasonable judgment of the Indemnified Party, result in prejudice to the rights of the Indemnified Party) after due notice has been given of a Claim, with counsel reasonably satisfactory to then until such time as the indemnified Party to represent Indemnitor shall make such assumption, the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Indemnified Party shall have the right to retain prosecute and conduct its own defense by counsel and participate in of its choice; provided, however, that the Indemnified Party may not enter into any compromise or settlement thereof without the consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. Such defense of such Claim, but the fees and expense of such counsel shall be at the cost and expense of the Indemnitor if the Indemnitor subsequently assumes such indemnified defense as provided above, or if it is subsequently determined that the Indemnitor is or was obligated to indemnify the Indemnified Party unlesswith respect to such Claim. Notwithstanding the foregoing: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counselif a Claim seeks equitable relief; or (ii) if the named Parties subject matter of a Claim relates to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation ongoing business of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights Purchaser Indemnified Parties, which Claim, if decided against any of the Purchaser Indemnified Parties, would have a Material Adverse Effect on the ongoing business or reputation of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) Purchaser Indemnified Parties, then, in each such case, the Purchaser Indemnified Parties alone shall be entitled to, acting as a reasonable person under similar circumstances, contest, defend and settle such Claim in the first instance and, if it irrevocably waives its right to indemnity under this Section 20the Purchaser Indemnified Parties do not contest, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to settle such Claim, the Sellers' Representative shall then have the right to contest and defend (bbbut not settle) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4.
Appears in 1 contract
Defense. An If any such action is brought against an indemnified party, the indemnifying Party shall, except as provided party will be entitled to participate in the immediately following sentence and the last sentence of this paragraph, to assume the defense of such Claimthereof to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after such notice from the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related indemnifying party to such proceeding. In any such proceeding, any indemnified Party shall have the right party of its election so to retain its own counsel and participate in assume the defense of such Claimthereof, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party party shall not be liable to such indemnified party for any settlement of any proceeding effected without its written consent, but if settled legal or other expenses subsequently incurred by the latter in connection with such consent or if there is a final judgment for the plaintiff, defense thereof unless the indemnifying Party agrees party has failed to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; claim and to employ counsel reasonably satisfactory to such indemnified person. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to select its own counsel and assume the defense of any action brought against it if the indemnifying party fails to select counsel reasonably satisfactory to the indemnified party, the expenses of such defense is to be paid by the indemnifying party. No indemnifying party shall consent to entry of any judgment or (3) in case enter into any settlement with respect to a claim without the consent of Customerthe indemnified party, pursuant which consent shall not be unreasonably withheld, or unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to Section 20.4such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of which has been assumed by an indemnifying party, without the consent of such indemnifying party, which consent shall not be unreasonably withheld.
Appears in 1 contract
Defense. An indemnifying Party shallExcept as set forth in Section 11.5(d) hereof, except as provided if any action, suit or proceeding is commenced, or any claim or demand is asserted, by a third party not Affiliated with any party hereto against a party hereto (the "Indemnitee") in respect of which the immediately following sentence and Indemnitee proposes to demand indemnification under Section 11.1 or 11.2 above, the last sentence of this paragraph, assume party from which indemnification is sought (the defense of such Claim, with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party "Indemnitor") shall have the right to retain assume the entire control thereof (including the selection of counsel reasonably acceptable to the Indemnitee), subject to the right of the Indemnitee to participate (with counsel of its own choice reasonably acceptable to the Indemnitor but at the Indemnitee's expense) in the defense, compromise or settlement thereof; provided, however, if the claim or demand is one for which both parties hereto are responsible, then both parties shall jointly assume the defense thereof with counsel reasonably acceptable to each party, and neither party may compromise or settle such claim or demand without the other party's consent, which consent will not be unreasonably denied or withheld. The Indemnitee shall notify the Indemnitor at the earliest practical time after the Indemnitee becomes aware of the circumstance, event or activity which gives rise to the asserted obligation of indemnity, it being understood that failure to provide such notice shall not affect the Indemnitee's right to indemnification hereunder, except to the extent the Indemnitor shall have been prejudiced as a result of such failure (and the Indemnitor shall not be liable for any attorney fees or expenses incurred during the period in which the Indemnitor shall have failed to give such notice). With respect to any actions, suits, proceedings, claims or demands as to which the Indemnitor shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such action with counsel chosen by it and approved by the Indemnitor, which approval shall not be unreasonably withheld, in which case the Indemnitor shall be entitled to participate in the defense of such Claim, but action (the fees and expense cost of such counsel participation to be at its own expense) and the Indemnitor shall be at obligated to pay the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable attorneys' fees and expenses of more than one separate firm (in addition the Indemnitee to any local counsel) for all such indemnified Parties and the extent that all such fees and expenses relate to claims as to which indemnification is due under this Article XI and subject to the limitations contained in this Agreement. Both the Indemnitor and the Indemnitee shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for cooperate fully in all respects with one another in any settlement of any proceeding effected without its written consentsuch defense, but if settled with such consent compromise or if there is a final judgment for the plaintiffsettlement, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shallincluding, without limitation, by making available to the other all pertinent information and personnel under its direct or indirect control, and the parties agree that such cooperation will be carried out in a way so as not to waive any applicable or available attorney-client privilege, and the parties will take all measures to protect such privilege. Neither party shall compromise or settle any such action, suit, proceeding, claim or demand without prior written consent of the indemnified Partyother party, effect any settlement of any pending which consent shall not be unreasonably withheld or threatened proceeding in respect of which any indemnified Party is or could have been delayed, provided, however, that a party and indemnity could have been sought hereunder by such indemnified Party: may so compromise or settle, after consultation with the other party, (xi) if such settlement; (A) compromise or settlement involves any form of relief other than solely the payment of moneymoney damages and/or the granting of releases, (B) involves provided that no such compromise, settlement or release shall acknowledge liability for future acts or obligate any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification Xxxxxxxx Indemnitee with respect to such Claimany post-Closing activities of the Business or, except for the Assumed Liabilities, obligate any Purchaser Indemnitee with respect to any pre-Closing activities of the Business, (bbii) the indemnified Party determines in good faith that there is if all claimants provide a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or release (cc) the indemnifying Party refuses or fails reasonably acceptable to timely assume the defense of such Claim; or (3Indemnitees) in case favor of CustomerIndemnitees, pursuant and (iii) if all claimants agree in writing to maintain the facts and circumstances of the settlement confidential to the extent permitted by applicable law). This Section 20.411.3 shall not apply to direct claims of any Xxxxxxxx Indemnitee against Purchaser or Silgan or of any Purchaser Indemnitee against Xxxxxxxx, that are not based upon claims asserted by third parties.
Appears in 1 contract
Defense. An indemnifying The Indemnified Party shall, except as provided in the immediately following sentence and the last sentence Indemnifying Party shall cooperate with the party assuming the defense, compromise or settlement of this paragraph, assume any such Action in accordance herewith in any manner that such party reasonably may request. If the Indemnifying Party so assumes the defense of such Claim, with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingAction, any indemnified the Indemnified Party shall have the right to retain its own employ separate counsel and to participate in (but not control) the defense of such Claimdefense, compromise, or settlement thereof, but the fees and expense expenses of such counsel shall be at the expense of such indemnified Indemnified Party unless: unless (ia) the indemnifying Indemnifying Party has specifically agreed to pay such fees and expenses, (b) any relief other than the payment of money damages is sought against the Indemnified Party or (c) the Indemnified Party shall have been advised by its 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 or that there may be a conflict of interest between the Indemnifying Party and the indemnified Indemnified Party in the conduct of the defense of such Action (in either of which cases the Indemnifying Party shall not have mutually agreed the right to direct the retention defense, compromise or settlement of such counsel; or (ii) Action on behalf of the named Parties to Indemnified Party), and in any such proceeding (including any impleaded parties) include both case the indemnifying Party reasonable fees and the indemnified Party and representation expenses of both Parties such separate counsel shall be borne by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed Indemnifying Party, it being understood and agreed, however, that the indemnifying Indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, not be liable for the fees and expenses of more than one separate firm (in addition to of attorneys at any local counsel) time for all such indemnified Parties and that all such fees and expenses the Indemnified Party together with its Affiliates, unless there shall be reimbursed as they are incurred. The indemnifying a conflict of interest between the Indemnified Party and an Affiliate thereof, in which case the Indemnifying Party shall not be liable for the fees and expenses of more than an aggregate of two separate firms of attorneys at any settlement time for the Indemnified Party and its Affiliates. No Indemnified Party shall settle or compromise or consent to entry of any proceeding effected without its written consent, but if settled Judgment with respect to any such consent or if there Action for which it is a final judgment for the plaintiff, the indemnifying Party agrees entitled to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, indemnification hereunder without the prior written consent of the indemnified Indemnifying Party, effect any settlement unless the Indemnifying Party shall have failed, after reasonable notice thereof, to undertake control of such Action in the manner provided above in this Section 7.4. The Indemnifying Party shall not, without the written consent of the Indemnified Party, settle or compromise or consent to entry of any pending or threatened proceeding in Judgment with respect of which to any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: Action (x) if such settlement; (A) involves in which any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been money damages is or may be made sought against the indemnified any Indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes that does not include as an unconditional release of term thereof the giving by the claimant, party conducting such indemnified investigation, plaintiff or petitioner to such Indemnified Party of a release from all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4Action.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Unitedglobalcom Inc)
Defense. An indemnifying If any claim, demand or liability is asserted by any third party against any Indemnified Party, the Indemnifying Party shallshall have the right and shall upon the written request of the Indemnified Party, except as provided defend any Actions brought against the Indemnified Party in respect of any Indemnifiable Claims with counsel of its choice reasonably acceptable to the Indemnified Party and, in the immediately following sentence and the last sentence case of this paragrapha Tax-related Action, assume the defense tax advisors of such Claim, with counsel its choice reasonably satisfactory acceptable to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceedingIndemnified Party. In any such action or proceeding, any indemnified the Indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claimcounsel, but the fees and expense expenses of such counsel shall be at the its own expense of such indemnified Party unless: unless (ia) the indemnifying Indemnifying Party and the indemnified Indemnified Party shall have mutually agreed agree in writing to the retention of such counsel; , or (iib) the named Parties parties to any such suit, action or proceeding (including any impleaded parties) include both the indemnifying Indemnifying Party and the indemnified Indemnified Party, and in the reasonable judgment of the Indemnified Party, representation of the Indemnifying Party and representation of both Parties the Indemnified Party by the same counsel would be inappropriate inadvisable due to actual or potential differing conflicts of interests between them. It is agreed The Parties shall cooperate and may participate in the defense of all third-party claims which may give rise to Indemnifiable Claims hereunder. If the Indemnifying Party assumes the defense (i) it shall be conclusively established for purposes of this Agreement that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings claims made in the same jurisdiction, Action are within the scope of and subject to indemnification but only if the Indemnifying Party assumed the defense pursuant to clause (a) above and not clause (b); and (ii) no compromise or settlement of such claims may be liable for effected by the fees and expenses of more than one separate firm Indemnifying Party without the Indemnified Party's written consent (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party which consent shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if unreasonably withheld) unless there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any no finding or admission of any violation of any Law legal requirement or any violation of the rights of any Person or (C) has any adverse and no effect on any other Claims claims that have been or may be made against the indemnified Indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes exclusive relief provided is monetary damages that are paid in full by the Indemnifying Party. If written notice is given to an unconditional release of such indemnified Indemnifying Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense commencement of any Claim: Action and the Indemnifying Party does not, within twenty (120) if it irrevocably waives its right to indemnity under this Section 20days after the Indemnified Party's written notice is given, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance give written notice to the indemnified Indemnified Party of its financial capacity election to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; Action, the Indemnifying Party shall be bound by any determination made in such Action or (3) any compromise or settlement effected by the Indemnified Party. In connection with the defense of any claim, each Party shall make available to the Party controlling such defense, any books, records or other documents within its control that are reasonably requested in case the course of Customer, pursuant to Section 20.4.or necessary or appropriate for such defense. 8.3.3
Appears in 1 contract
Samples: Securities Purchase Agreement (Hovnanian Enterprises Inc)
Defense. An If any such action is brought against an indemnified party, the indemnifying Party shall, except as provided will be entitled to participate in the immediately following sentence and the last sentence of this paragraph, to assume the defense of such Claimthereof to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, by giving written notice to the indemnified party within thirty (30) days of its receipt of written notice of such action from the indemnified party, and after such notice from the indemnifying Party to represent such indemnified party of the indemnifying Party’s election to assume the defense thereof, the indemnifying Party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof unless the indemnifying Party has failed to assume the defense of such claim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the foregoing to the contrary, the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related party will be entitled to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain select its own counsel and participate in assume the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: any action brought against it if (i) the indemnified party has been advised by counsel that an actual conflict of interest exists between the indemnifying Party and the indemnified Party shall have mutually agreed to party in connection with the retention defense of such counsel; action or proceeding, (ii) the named Parties such action or proceeding seeks injunctive relief with respect to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation claim or is part of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any a criminal proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aaiii) the indemnifying Party fails to provide reasonable assurance select counsel reasonably satisfactory to the indemnified party, in each case, with the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of its financial capacity such indemnified claim at no unreasonable out of pocket expense to defend the indemnified party. No indemnifying Party shall consent to entry of any judgment or provide indemnification enter into any settlement with respect to a claim either (a) without the consent of the indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such Claimclaim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result defense of monetary damages that would be fully reimbursed which has been assumed by an indemnifying Party under Party, without the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense consent of such Claim; or (3) in case of Customerindemnifying Party, pursuant to Section 20.4which consent shall not be unreasonably withheld.
Appears in 1 contract
Defense. An indemnifying If the facts pertaining to a Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party shallwithin 15 days following its receipt of the notice of such claim, except as provided in the immediately following sentence and the last sentence of this paragraph, elect to assume the defense or the prosecution of such Claimclaim, with including the employment of counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding or accountants at its cost and shall pay the fees and disbursements of such counsel related to such proceedingexpense. In any such proceeding, any indemnified The Indemnified Party shall have the right to retain its own employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in the defense of such Claimaction, but the fees and expense expenses of such counsel shall be at the expense of such indemnified Party unless: Indemnified Party's own expense, unless (ia) the indemnifying Party and Indemnity Obligor failed to assume the indemnified Party shall have mutually agreed to the retention of defense or prosecution thereof within such counsel15-day period; or (iib) the named Parties to any such proceeding (including any impleaded parties) include both Indemnified Party determines there is a conflict of interest in the indemnifying Party and the indemnified Party and representation of both Parties by counsel selected by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall notIndemnity Obligor, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for which case the fees and expenses of more than one separate firm counsel selected by the Indemnified Party shall be at the expense of the Indemnity Obligor. If the Indemnity Obligor assumes the defense of a proceeding, (i) it will be conclusively established for purposes of the Agreement that the claims made in addition that proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claims may be effected by the Indemnity Obligor without the Indemnified Party's consent unless (A) there is no finding or admission of any violation of applicable laws or any violation of the rights of any person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnity Obligor; and (iii) the Indemnified Party will have no liability with respect to any local counsel) for compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, the filing of any answer by the Indemnity Obligor in order to preserve the rights of the Indemnified Party due to a filing deadline shall not in itself constitute its election to assume the defense of a claim hereunder. Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, all the parties to this Agreement shall cooperate in the defense or prosecution of such indemnified Parties claim and that all shall furnish such fees records, information and expenses testimony and shall attend such conferences, discovery proceedings and trials as may be reimbursed as they are incurredreasonably requested in connection therewith. The indemnifying Party Indemnity Obligor shall not be liable for any settlement of any proceeding such claim effected without its prior written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may shall not be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4unreasonably withheld.
Appears in 1 contract
Defense. An indemnifying Party shall, except Except as provided in Section 11.6, if within 10 calendar days after an Indemnitee provides Notice to the immediately following sentence and Indemnifying Party of any Third Party Claim, the last sentence of this paragraph, Indemnitee receives Notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim, the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with counsel reasonably satisfactory the defense thereof. The Indemnitee shall be entitled to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but Third Party Claim and to employ counsel for such purpose at the fees sole cost and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Indemnitee. Each Party shall have mutually agreed to in good faith consult with the retention of such counsel; or (ii) other Party regarding the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense defense of any indemnified Third Party in connection with any proceeding or related proceedings in Claim upon the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition other Party’s reasonable request from time to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurredtime. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without Without the prior written consent of the indemnified PartyIndemnitee, effect the Indemnifying Party will not enter into any settlement of any pending Third Party Claim which would lead to liability or threatened proceeding in respect of which create any indemnified Party is financial or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than obligation on the payment of money, (B) involves any finding or admission of any violation of any Law or any part of the rights Indemnitee for which the Indemnitee is not entitled to indemnification hereunder or which would impose any injunctive or other equitable remedy on the Indemnitee. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder (or which would not impose any Person injunctive or (Cother equitable remedy on the Indemnitee) has any adverse effect on any other Claims and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give Notice to the Indemnitee to that have been effect. If the Indemnitee fails to consent to such firm offer within 10 calendar days after its receipt of such Notice, the Indemnitee may continue to contest or may defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party to such Third Party Claim will be made against the indemnified Party, or (y) if amount of such settlement involves only offer, plus reasonable costs and expenses paid or incurred by the payment of money, unless it includes an unconditional release Indemnitee up to the date of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4notice.
Appears in 1 contract
Defense. An indemnifying If a third‑party action, suit, claim or demand (a “Third Party shallClaim”) is involved, except as provided in then, upon receipt of the immediately following sentence Indemnification Notice, the Indemnitor shall have fifteen (15) calendar days after said notice is given to elect, by written notice given to the Indemnitee, to undertake, conduct and control, through counsel of its own choosing which is reasonably acceptable to the last sentence of this paragraphIndemnitee and at its sole risk and expense, assume the good faith settlement or defense of such Claimclaim, and the Indemnitee shall cooperate with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party Indemnitor in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unlessconnection therewith; provided: (ia) all settlements require the indemnifying Party prior reasonable consultation with the Indemnitee and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified PartyIndemnitee, effect which consent shall not be unreasonably withheld, provided that the Indemnitor may settle any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than claim without the payment of money, (B) involves any finding or admission of any violation of any Law or any prior consent of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) Indemnitee if such settlement involves only the payment of money, unless it includes an unconditional full release of the Indemnitee and the Indemnitor agrees to pay all amounts payable pursuant to such indemnified Party of all liability on claims that are settlement, and (b) the subject Indemnitee shall be entitled to participate in such settlement or defense through counsel chosen by the Indemnitee (the fees and expenses of such proceedingcounsel shall be borne by the Indemnitee). An indemnified Party may assume control So long as the Indemnitor is contesting any such claim in good faith, the Indemnitee shall not pay or settle any such claim; provided, however, that notwithstanding the foregoing, the Indemnitee shall have the right to pay or settle any such claim at any time; provided, that in such event, the Indemnitee shall waive any right of indemnification 58 therefor by the Indemnitor. If the Indemnitor does not make a timely election to undertake the good faith defense or settlement of the claim as aforesaid, or if the Indemnitor fails to proceed with the good faith defense or settlement of any Claim: (1) if it irrevocably waives the matter after making such election, then, in either such event, the Indemnitee shall have the right to contest, settle or compromise the claim at its exclusive discretion, retaining its right to indemnity under this Section 20seek indemnification from Indemnitor. In addition, or if an Indemnitee (2a) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Third Party Claim would may materially and adversely affect it or any other indemnitees of its Affiliates other than as a result of monetary damages that for which it would be fully reimbursed by an indemnifying Party entitled to indemnification under the this Agreement, or (ccb) in the indemnifying Party refuses or fails to timely assume the defense good faith opinion of counsel of such party concludes that there are defenses available to it that may be unavailable to, or inconsistent with or contrary to the interests of the Indemnitor, the Indemnitee may, by notice to the Indemnitor, retain the exclusive right to defend, compromise or settle such Third Party Claim; , retaining its right to seek indemnification from Indemnitor. In any event, the Indemnitor and the Indemnitee shall fully cooperate with each other in connection with the defense, including by furnishing all available documentary or other evidence as is reasonably requested by the other party. (3) in case of Customer, pursuant to Section 20.4.c)
Appears in 1 contract
Samples: Stock Purchase Agreement
Defense. An indemnifying If any claim, demand or liability is asserted by any third party against any Indemnified Party, the Indemnifying Party shallshall have the right and shall upon the written request of the Indemnified Party, except as provided defend any Actions brought against the Indemnified Party in respect of any Indemnifiable Claims with counsel of its choice reasonably acceptable to the Indemnified Party and, in the immediately following sentence and the last sentence case of this paragrapha Tax-related Action, assume the defense tax advisors of such Claim, with counsel its choice reasonably satisfactory acceptable to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceedingIndemnified Party. In any such action or proceeding, any indemnified the Indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claimcounsel, but the fees and expense expenses of such counsel shall be at the its own expense of such indemnified Party unless: unless (ia) the indemnifying Indemnifying Party and the indemnified Indemnified Party shall have mutually agreed agree in writing to the retention of such counsel; , or (iib) the named Parties parties to any such suit, action or proceeding (including any impleaded parties) include both the indemnifying Indemnifying Party and the indemnified Indemnified Party, and in the reasonable judgment of the Indemnified Party, representation of the Indemnifying Party and representation of both Parties the Indemnified Party by the same counsel would be inappropriate inadvisable due to actual or potential differing conflicts of interests between them. It is agreed The Parties shall cooperate and may participate in the defense of all third-party claims which may give rise to Indemnifiable Claims hereunder. If the Indemnifying Party assumes the defense, (i) it shall be conclusively established for purposes of this Agreement that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings claims made in the same jurisdictionAction are within the scope of and subject to indemnification, but only if the Indemnifying Party assumed the defense pursuant to clause (a) above and not clause (b), and (ii) no compromise or settlement of such claims may be liable for effected by the fees and expenses of more than one separate firm Indemnifying Party without the Indemnified Party's written consent (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party which consent shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if unreasonably withheld) unless there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any no finding or admission of any violation of any Law legal requirement or any violation of the rights of any Person or (C) has any adverse and no effect on any other Claims claims that have been or may be made against the indemnified Indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes exclusive relief provided is monetary damages that are paid in full by the Indemnifying Party. If written notice is given to an unconditional release of such indemnified Indemnifying Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense commencement of any Claim: Action and the Indemnifying Party does not, within twenty (120) if it irrevocably waives its right to indemnity under this Section 20days after the Indemnified Party's written notice is given, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance give written notice to the indemnified Indemnified Party of its financial capacity election to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; Action, the Indemnifying Party shall be bound by any determination made in such Action or (3) any compromise or settlement effected by the Indemnified Party. In connection with the defense of any claim, each Party shall make available to the Party controlling such defense, any books, records or other documents within its control that are reasonably requested in case the course of Customer, pursuant to Section 20.4or necessary or appropriate for such defense. 8.3.3.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hovnanian Enterprises Inc)
Defense. An If any such claim is brought against an indemnified party, the indemnifying Party shallparty will be entitled to participate in and to assume the defense thereof to the extent that it may wish, except as provided and after notice from the indemnifying party to such indemnified party of the indemnifying party’s election to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the indemnified party in connection with the immediately following sentence defense thereof unless the indemnifying party has failed to assume and diligently prosecute the last sentence defense of this paragraphsuch claim. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to select its own counsel and assume the defense of any action brought against it if the indemnifying party fails to select counsel, the expenses of such Claimdefense to be paid by the indemnifying party. As a condition to the indemnifying party’s obligations hereunder, the indemnified party will in good faith cooperate with counsel reasonably satisfactory and assist the indemnifying party in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified Party party. No indemnifying party shall consent to represent entry of any judgment or enter into any settlement with respect to a claim either (a) without the consent of the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingparty, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party which consent shall not be liable for unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiffaction, the defense of which has been assumed by an indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shallparty, without the prior written consent of the indemnified Partysuch indemnifying party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may consent shall not be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4unreasonably withheld.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Contango Oil & Gas Co)
Defense. An If any Proceeding referred to in Section 10.9.1 is brought against an indemnified party and it gives notice to the indemnifying Party shall, except as provided in party of the immediately following sentence and the last sentence of this paragraph, assume the defense commencement of such Proceeding, the indemnifying party will, unless the claim is a Tax Claim, with counsel reasonably satisfactory be entitled to participate in such Proceeding and, to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: extent that it wishes (unless (i) the indemnifying Party party is also a party to such Proceeding and the indemnified Party shall have mutually agreed to the retention of such counsel; party determines in good faith that joint representation would be inappropriate, or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party party of its financial capacity to defend or such Proceeding and provide indemnification with respect to such ClaimProceeding), (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such ClaimProceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party’s consent unless (3A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, and (B) the sole relief provided is monetary damages that are paid in case full by the indemnifying party; and (iii) the indemnifying party will have no liability with respect to any compromise or settlement of Customersuch claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the indemnifying party does not, pursuant within ten (10) days after the indemnified party’s notice is given, give notice to Section 20.4the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the indemnified party.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Management Network Group Inc)
Defense. An indemnifying Party shall, except as provided in Subject to the immediately following sentence and the last sentence terms of this paragraphAgreement, assume at its option, the defense of such Claim, with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party Indemnitor shall have the right to retain its own counsel and participate in assume the sole control of the defense or settlement of any Claim solely for monetary damages by giving written notice to the Indemnitee within ten (10) days after the Indemnitor’s receipt of a Claim notice under Section 10.3(a). The assumption of the defense of a Claim by the Indemnitor shall be construed as an acknowledgment that the Indemnitor is liable to indemnify the Indemnitee in respect of the Claim. Regardless of whether the Indemnitor chooses to defend or prosecute any Claim, the Indemnitee shall, and shall cause each Melior Indemnified Party or Biodexa Indemnified Party, as applicable, to, cooperate fully with the Indemnitor and its legal representatives in the investigation of any action with respect to a Claim covered by this indemnification, including by (a) delivering to the Indemnitor all original notices and documents (including court papers) received by the Indemnitee in connection with the Claim, and (b) furnishing such records, information and testimony, and providing such witnesses and attending such conferences, discovery proceedings, hearings, trials and appeals, in each case, as may be reasonably requested in connection with such Claim. In the case where the Indemnitor has assumed the defense of any Claim pursuant to this Section 10.3, the Indemnitee may participate in, but the fees not control, at its sole cost and expense (subject to the following sentence), the Indemnitor’s defense of any Claim with counsel of the Indemnitee’s own selection. Should the Indemnitor assume the defense of a Claim, the Indemnitor shall not be liable to the Indemnitee for any legal expenses subsequently incurred by such counsel shall be at Indemnitee in connection with the expense analysis, defense or settlement of such indemnified Party unless: the Claim unless (i) specifically approved in writing by the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; Indemnitor or (ii) the named Parties interests of the Indemnitor and Indemnitee with respect to any such proceeding (including any impleaded parties) include both Claim are sufficiently adverse to prohibit the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due of both Parties under Applicable Law, ethical rules or equitable principles. For clarity, if the Indemnitee has the right to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right a Claim pursuant to indemnity under this Section 2010.3, or (2) if, without prejudice the Indemnitee shall be entitled to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to control such Claim, without limiting the Indemnitor’s responsibility for Losses under Section 10.1 or Section 10.2, as applicable. [***] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED BECAUSE THE INFORMATION (bbI) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or IS NOT MATERIAL AND (ccII) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.
Appears in 1 contract
Defense. An indemnifying Party shall, except as provided OF CLAIMS -- The Company shall be entitled to participate in the immediately following sentence and the last sentence defense of this paragraph, any Indemnifiable Claim or to assume the defense of such Claimthereof, with counsel reasonably satisfactory to Indemnitee; provided, however, that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the indemnified Party use of counsel chosen by the Company to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of Indemnitee would present such counsel related to such proceeding. In any such proceedingwith an actual or potential conflict, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (iib) the named Parties to parties in any such proceeding Indemnifiable Claim (including any impleaded parties) include both the indemnifying Party Company and Indemnitee and Indemnitee shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the indemnified Party and Company or (c) any such representation of both Parties by the same such counsel would be inappropriate due precluded under the applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of retain separate counsel (but not more than one separate law firm (in addition plus, if applicable, local counsel with respect to any local counselparticular Indemnifiable Claim) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurredat the Company's expense. The indemnifying Party Company shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any proceeding threatened or pending Indemnifiable Claim effected without its the Company's prior written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shallThe Company shall not, without the prior written consent of the indemnified PartyIndemnitee, effect any settlement of any threatened or pending or threatened proceeding in respect of which any indemnified Party Indemnifiable Claim that Indemnitee is or could have been a party and indemnity could have been sought hereunder by unless such indemnified Party: (x) if such settlement; (A) settlement solely involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it money and includes an a complete and unconditional release of such indemnified Party of Indemnitee from all liability on any claims that are the subject matter of such proceedingIndemnifiable Claim. An indemnified Party Neither the Company nor Indemnitee shall unreasonably withhold its consent to any proposed settlement; provided, however, that Indemnitee may assume control withhold consent to any settlement that does not provide a complete and unconditional release of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4Indemnitee.
Appears in 1 contract
Samples: Form of Indemnification Agreement (Dell Computer Corp)
Defense. An indemnifying If the facts pertaining to a Loss arise out of the claim of ------- any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party shallwithin 30 days following its receipt of the notice of such claim, except as provided in the immediately following sentence and the last sentence of this paragraph, elect to assume the defense or the prosecution of such Claimclaim, including the employment of counsel or accountants at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss; provided that such counsel or accountants shall be reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counselIndemnified Party; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed provided that the indemnifying Party shall not, in respect Indemnity Obligor agrees prior to assuming such defense or prosecution of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and claim that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there it is a final judgment for the plaintiff, the indemnifying Party agrees obligated to indemnify the indemnified Indemnified Party from and against any Losses for the loss suffered by reason the Indemnified Party as a result of such settlement or judgment. No indemnifying Party shall, without claim; provided that the prior written consent Indemnity Obligor can demonstrate to the reasonable satisfaction of the indemnified Indemnified Party that such Indemnity Obligor has the financial ability to satisfy such indemnity obligation; and provided that any compromise or settlement must be reasonably approved by the Indemnified Party. Notwithstanding the foregoing, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Indemnified Party determines in good faith that there is a reasonable likelihood probability that a Claim would materially and claim may adversely affect it or any other indemnitees its affiliates other than as a result of monetary damages that for which it would be fully reimbursed by an indemnifying Party entitled to indemnification under the this Agreement, or (cc) the indemnifying Indemnified Party refuses or fails may, by notice to timely the Indemnity Obligor, assume the defense exclusive right to defend, compromise or settle such claim, but the Indemnity Obligor will not be bound by any determination of a claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in such action, but the fees and expenses of such Claim; counsel shall be at the Indemnified Party's own expense. Whether or (3) not the Indemnity Obligor chooses so to defend or prosecute such claim, all the parties to this Agreement shall cooperate in case the defense or prosecution of Customersuch claim and shall furnish such records, pursuant to Section 20.4information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. No Indemnity Obligor shall be liable for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld.
Appears in 1 contract
Samples: Stock Purchase Agreement (SMTC Corp)
Defense. An indemnifying If the facts relating to a Loss or Company Loss arise out of a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss or Company Loss, the Indemnity Obligor shall, except as provided in by giving written notice to the immediately Indemnified Party within 15 days following sentence and its receipt of the last sentence notice of this paragraphsuch claim, assume the defense or the prosecution thereof, including the employment of such Claimcounsel or accountants, with counsel reasonably satisfactory to the indemnified Indemnified Party, at its cost and expense; PROVIDED, HOWEVER, that during the interim the Indemnified Party shall use its best efforts to represent take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceedingLoss or Company Loss. In any such proceeding, any indemnified The Indemnified Party shall have the right to retain its own employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in the defense of such Claimtherein, but the fees and expense expenses of such counsel shall be at the expense Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such indemnified counsel it is advisable for such Indemnified Party unless: to employ separate counsel, or (ic) the indemnifying Party Indemnity Obligor has failed to assume the defense of such action and the indemnified Party shall have mutually agreed employ counsel reasonably satisfactory to the retention of Indemnified Party. Whether or not the Indemnity Obligor defends or prosecutes such counsel; claim, all the parties hereto shall cooperate in the defense or (ii) the named Parties to any prosecution thereof and shall furnish such proceeding (including any impleaded parties) include both the indemnifying Party records, information and the indemnified Party testimony and representation of both Parties by the same counsel would shall attend such conferences, discovery proceedings and trial as may be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party reasonably requested in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurredtherewith. The indemnifying Party Indemnity Obligor shall not be liable for any settlement of any proceeding such claim effected without its prior written consent, but if settled . In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with such consent any Loss or if there is Company Loss arising out of a final judgment for the plaintiffThird Party Claim, the indemnifying Party agrees Indemnity Obligor shall be subrogated to indemnify and shall stand in the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent place of the indemnified Party, effect Indemnified Party as to any settlement of any pending events or threatened proceeding circumstances in respect of which the Indemnified Party may have any indemnified Party is right or could have been a claim against such third party and indemnity could have been sought hereunder by relating to such indemnified Party: (x) if such settlement; (A) involves matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any form of relief other than subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the payment of money, (B) involves any finding or admission of any violation of any Law or any Indemnified Party without the consent of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4.
Appears in 1 contract
Samples: Azco Mining Inc
Defense. Promptly after receipt by an Indemnified Party of notice of a possible action, suit, proceeding or claim referred to in Section 7.01 hereof, such Indemnified Party, if a claim in respect thereof is to be made against the Indemnifying Party under such Section, shall provide the Indemnifying Party with written particulars thereof; provided that failure to provide the Indemnifying Party with such particulars shall not relieve such Indemnifying Party from any liability which it might have on account of the indemnity provided for in this Article Seven except insofar as such failure shall prejudice such Indemnifying Party. The Indemnified Party shall also provide to the Indemnifying Party copies of all relevant documentation and, unless the Indemnifying Party assumes the defence thereof, shall keep such Indemnifying Party advised of the progress thereof and will discuss with the Indemnifying Party all significant actions proposed. An indemnifying Indemnifying Party shallshall be entitled, except as provided at its own expense, to participate in (and, to the immediately following sentence and extent that it may wish, to assume) the last sentence defence of this paragraphany such action, suit, proceeding or claim but such defence shall be conducted by counsel of good standing approved by the Indemnified Party, such approval not to be unreasonably withheld. Upon the Indemnifying Party notifying the Indemnified Party of its election so to assume the defense of defence and retaining such Claimcounsel, with counsel reasonably satisfactory the Indemnifying Party shall not be liable to the indemnified Indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In for any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; legal or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties other expenses subsequently incurred by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party it in connection with such defence other than for reasonable costs of investigation. If such defence is assumed by the Indemnifying Party, it shall, through the course thereof, provide copies of all relevant documentation to the Indemnified Party, keep such Indemnified Party advised of the progress thereof and shall discuss with the Indemnified Party all significant actions proposed. No Indemnifying Party shall enter into any proceeding or related proceedings in settlement without the same jurisdictionconsent of the Indemnified Party, but such consent shall not be liable for unreasonably withheld. If such defence is not assumed by the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Indemnifying Party, the Indemnifying Party shall not be liable for any settlement of any proceeding effected made without its written consent, but if settled with such consent or if there is a final judgment for shall not be unreasonably withheld. Notwithstanding the plaintiffforegoing, an Indemnified Party shall have the indemnifying Party agrees right, at the Indemnifying Party's expense, to indemnify the indemnified Party from and against any Losses by reason employ counsel of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding its own choice in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission defence of any violation of any Law such action, suit, proceeding or any of claim if (a) the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release employment of such indemnified counsel has been authorized by the Indemnifying Party of all liability on claims that are the subject of in connection with such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claimdefence; or (3b) counsel retained by the Indemnifying Party or the Indemnified Party shall have advised the Indemnified Party that there may be legal defences available to it which are different from or in case addition to those available to the Indemnifying Party (in which event and to that extent, the Indemnifying Party shall not have the right to assume or direct the defence on behalf of Customerthe Indemnified Party) or that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party; or (c) the Indemnifying Party shall not have assumed such defence and employed counsel therefor within a reasonable time after receiving notice of such action, pursuant to Section 20.4suit, proceeding or claim.
Appears in 1 contract
Defense. An indemnifying If any Action is brought against an Indemnified Party, the Indemnifying Party shall, except as provided will be entitled to participate in the immediately following sentence and the last sentence of this paragraph, to assume the defense of such Claimthereof to the extent that it may wish, with counsel reasonably satisfactory to such Indemnified Party, and after notice from the indemnified Indemnifying Party to represent such Indemnified Party of the indemnified Indemnifying Party’s election to assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the latter in such proceeding and shall pay connection with the fees and disbursements defense thereof unless the Indemnifying Party fails to assume the defense of such counsel related Action to such proceedingprotect the Indemnified Party. In any such proceedingNotwithstanding anything to the contrary in this Subsection 10.4(b), any indemnified the Indemnified Party shall have the right will be entitled to retain select its own counsel and participate in assume the defense of any Action brought against it, at the Indemnifying Party’s expense if (i) the court in which such Claim, but Action is pending determines that a conflict of interest exists such that the fees and expense Indemnifying Party’s counsel is prohibited by such court or otherwise unable to represent the Indemnified Party with respect to such Action or (ii) if there is one or more defenses that could be asserted by the Indemnified Party that could not be asserted by the Indemnifying Party or the Indemnifying Party’s counsel (on the Indemnified Party’s behalf). The expenses of such counsel defense to be paid by the Indemnifying Party shall be limited to the expenses of one law firm in each state in which an action has been filed. As a condition to the Indemnifying Party’s obligations hereunder, the Indemnified Party will in good faith cooperate with and assist the Indemnifying Party in the prosecution or defense of such indemnified Action at the expense of such the Indemnifying Party. No Indemnifying Party will consent to entry of any judgment or enter into any settlement with respect to an indemnified Party unlessAction either: (i) without the indemnifying Party and consent of the indemnified Party shall have mutually agreed to the retention of such counselIndemnified Party, which consent will not be unreasonably delayed, conditioned or withheld; or (ii) unless such judgment or settlement includes the named Parties claimant or plaintiff giving the Indemnified Party an unconditional release from all liability with respect to any such proceeding (including any impleaded parties) include both the indemnifying Action. No Indemnified Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due will consent to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense entry of any indemnified Party in connection with any proceeding judgment or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for enter into any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiffindemnified Action, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses defense of which has been assumed by reason of such settlement or judgment. No indemnifying Party shallan Indemnifying Party, without the prior written consent of the indemnified such Indemnifying Party, effect any settlement of any pending which consent will not be unreasonably delayed, conditioned or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4withheld.
Appears in 1 contract
Defense. An If any action is brought against an indemnified party, the indemnifying Party shall, except as provided will be entitled to participate in the immediately following sentence and the last sentence of this paragraph, to assume the defense of such Claim, with counsel reasonably satisfactory thereof to the indemnified Party to represent the indemnified Party in such proceeding extent that it may wish, and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) after notice from the indemnifying Party and the to such indemnified Party shall have mutually agreed to the retention party of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and Party’s election to assume the indemnified Party and representation of both Parties by defense thereof, the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable to such indemnified party for any settlement of any proceeding effected without its written consent, but if settled legal or other expenses subsequently incurred by the latter in connection with such consent or if there is a final judgment for the plaintiff, defense thereof unless the indemnifying Party agrees has failed to indemnify assume and diligently prosecute the indemnified Party from and against any Losses by reason defense of such settlement or judgmentclaim. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or Notwithstanding any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against foregoing to the contrary, the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may party will be entitled to select its own counsel and assume control of the defense of any Claim: (1) action brought against it if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance assume or diligently prosecute such defense, the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying Party shall consent to entry of its financial capacity any judgment or enter into any settlement with respect to defend a claim either (a) without the consent of the indemnified party, which consent shall not be unreasonably withheld, or provide indemnification (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such Claimclaim. No 27242226 49 Asset Purchase Agreement indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result defense of monetary damages that would be fully reimbursed which has been assumed by an indemnifying Party under Party, without the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense consent of such Claim; or (3) in case of Customerindemnifying Party, pursuant to Section 20.4which consent shall not be unreasonably withheld.
Appears in 1 contract
Defense. An indemnifying Party shallPromptly after receipt by an Indemnified Person of notice of any claim or demand or the commencement of any suit, except as provided action or proceeding by any third party with respect to which indemnification may be sought hereunder, such Indemnified Person shall notify in writing the immediately following sentence and Indemnitor of such claim or demand or the last sentence commencement of this paragraphsuch suit, action or proceeding, but failure so to notify the Indemnitor shall not relieve the Indemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be actually prejudiced by such failure. If the Indemnitor shall so elect, the Indemnitor shall assume the defense of such Claimclaim, with demand, action, suit or proceeding, including the employment of counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding Indemnified Person, and shall pay the fees and disbursements of such counsel. In the event, however, that such Indemnified Person shall reasonably determine that having common counsel related would present such counsel with a conflict of interest or alternative defenses shall be available to an Indemnified Person or if the Indemnitor shall fail to assume the defense of the claim, demand, action, suit or proceeding in a timely manner, then such Indemnified Person may employ separate counsel to represent or defend such Person against any such claim, demand, action, suit or proceeding and the Indemnitor shall pay the reasonable fees and disbursements of such counsel; provided, however, that the Indemnitor shall not be required to pay the fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single action, suit or proceeding. In For any such proceedingclaim, any indemnified Party demand, action, suit or proceeding the defense of which the Indemnitor shall assume, the Indemnified Person shall have the right to participate therein and to retain its own counsel and participate at such Indemnified Person's own expense (except as otherwise specifically provided in this Section 12.4), so long as such participation does not interfere with the defense Indemnitor's control of such Claimclaim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; demand, action, suit or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between themproceeding. It is agreed that the indemnifying Party The Indemnitor shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified PartyIndemnified Person, effect settle or compromise or consent to the entry of any settlement of judgment in any pending or threatened claim, action, suit or proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been indemnification may be sought hereunder by such indemnified Party: (x) if unless such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding compromise or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes consent shall include an unconditional release of such indemnified Party of Indemnified Person from all liability on claims that are the subject arising out of such proceeding. An indemnified Party may assume control of xxx claim, demand, action, suit or proceeding and would not prohibit, restrict or impair the defense of Indemnified Person from engaging in any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4business.
Appears in 1 contract
Defense. An If any such action is brought against an indemnified party, the indemnifying Party shall, except as provided will be entitled to participate in the immediately following sentence and the last sentence of this paragraph, to assume the defense of such Claim, with counsel reasonably satisfactory thereof to the indemnified Party to represent the indemnified Party in such proceeding extent that it may wish, and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) after notice from the indemnifying Party and the to such indemnified Party shall have mutually agreed to the retention party of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and Party’s election to assume the indemnified Party and representation of both Parties by defense thereof, the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable to such indemnified party for any settlement of any proceeding effected without its written consent, but if settled legal or other expenses subsequently incurred by the latter in connection with such consent or if there is a final judgment for the plaintiff, defense thereof unless the indemnifying Party agrees has failed to indemnify assume the indemnified Party from and against any Losses by reason defense of such settlement or judgmentclaim. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or Notwithstanding any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against foregoing to the contrary, the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may party will be entitled to select its own counsel and assume control of the defense of any Claim: (1) action brought against it if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance assume such defense, the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying Party shall consent to entry of its financial capacity any judgment or enter into any settlement with respect to defend a claim either (a) without the consent of the indemnified party, which consent shall not be unreasonably withheld, delayed or provide indemnification conditioned, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such Claimclaim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result defense of monetary damages that would be fully reimbursed which has been assumed by an indemnifying Party under Party, without the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense consent of such Claim; or (3) in case of Customerindemnifying Party, pursuant to Section 20.4.which consent shall not be unreasonably withheld. PURCHASE AND SALE AGREEMENT 35
Appears in 1 contract
Samples: Purchase and Sale Agreement (Energy & Exploration Partners, Inc.)
Defense. An indemnifying If the matter with respect to which a Party shallseeks indemnification (the "Indemnitee") involves a claim asserted against the Indemnitee by a third party, except as provided promptly after receipt by the Indemnitee of notice of the commencement of any action, it will notify the other Party (the "Indemnitor") in writing of the immediately following sentence commencement thereof but the omission so to notify the Indemnitor will not relieve the Indemnitor from any liability which it may have to the Indemnitee unless the Indemnitor is prejudiced by such omission. In case any such action shall be brought against the Indemnitee and it shall notify the last sentence Indemnitor of this paragraphthe commencement thereof, the Indemnitor shall be entitled to participate in, and, to the extent that it may wish to assume the defense of such Claimthereof, with counsel satisfactory to the Indemnitee, and after notice from the Indemnitor to the Indemnitee of its election to assume the defense thereof, the Indemnitor shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof unless (i) the Indemnitee shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to this sentence, (ii) the Indemnitor shall not have employed counsel reasonably satisfactory to the indemnified Party Indemnitee to represent the indemnified Party in such proceeding Indemnitee within a reasonable time, (iii) the Indemnitor and shall pay its counsel do not actively and vigorously pursue the fees and disbursements defense of such action, or (iv) the Indemnitor has authorized the employment of counsel related to such proceeding. In any such proceedingfor the Indemnitee at the expense of the Indemnitor; provided, any indemnified Party however, that the Indemnitee shall have the right to retain employ counsel to represent it if, in its own reasonable judgment, it is advisable for it to be represented by separate counsel and participate in because separate defenses are available, or because a conflict of interest exists between the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party Indemnitee and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, Indemnitor in respect of the legal expense of any indemnified Party to such claim, and in connection with any proceeding or related proceedings in the same jurisdiction, be liable for such event the fees and expenses of more than one such separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses counsel shall be reimbursed as they are incurredpaid by the Indemnitor. In such circumstance, the Indemnitee shall designate the counsel. The indemnifying Party shall Indemnitor will not be liable to the Indemnitee for any settlement of any proceeding effected without its written consent, but if settled with such consent action or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, claim without the prior written consent of the indemnified Party, effect Indemnitor and the Indemnitor may not unreasonably withhold its consent to any settlement. The Indemnitor will not consent to entry of any judgment or enter into any settlement of or compromise any pending or threatened proceeding in respect of claim which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a full release of such indemnified Party of from all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it claim or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4litigation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Princeton Video Image Inc)
Defense. An If any such action is brought against an indemnified party, the indemnifying Party shall, except as provided will be entitled to participate in the immediately following sentence and the last sentence of this paragraph, to assume the defense of such Claimthereof to the extent that it may wish, with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) party, and after notice from the indemnifying Party and the to such indemnified Party shall have mutually agreed to the retention party of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and Party’s election to assume the indemnified Party and representation of both Parties by defense thereof, the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable to such indemnified party for any settlement of any proceeding effected without its written consent, but if settled legal or other expenses subsequently incurred by the latter in connection with such consent or if there is a final judgment for the plaintiff, defense thereof unless the indemnifying Party agrees has failed to indemnify assume the defense of such claim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to select its own counsel and assume the defense of any action brought against it if the indemnifying Party from and against any Losses by reason fails to assume or diligently prosecute such defense, the expenses of such settlement defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or judgmentdefense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying Party shall, shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the prior written consent of the indemnified Partyparty, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may consent shall not be made against the indemnified Partyunreasonably withheld, or (yb) if unless such judgment or settlement involves only the payment of moneymoney damages by the indemnifying Party, unless it does not impose an injunction or other equitable relief or any other obligations upon the indemnified party and includes as an unconditional release of term thereof the giving by the claimant or plaintiff to such indemnified Party party of a release from all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claimclaim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, (bb) the indemnified Party determines in good faith that there defense of which has been assumed and is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed being diligently prosecuted by an indemnifying Party under Party, without the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense consent of such Claim; or (3) in case of Customerindemnifying Party, pursuant to Section 20.4which consent shall not be unreasonably withheld.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Gastar Exploration USA, Inc.)
Defense. An If any such action is brought against an indemnified Party, the indemnifying Party shall, except as provided will be entitled to participate in the immediately following sentence and the last sentence of this paragraph, to assume the defense of such Claimthereof to the extent that it may wish, with counsel reasonably satisfactory to such indemnified Party, and after notice from the indemnified indemnifying Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) of the indemnifying Party and Party’s election to assume the indemnified Party shall have mutually agreed to defense thereof, the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable to such indemnified Party for any settlement of any proceeding effected without its written consent, but if settled legal or other expenses subsequently incurred by the latter in connection with such consent or if there is a final judgment for the plaintiff, defense thereof unless the indemnifying Party agrees has failed to indemnify assume the defense of such claim. Notwithstanding any of the foregoing to the contrary, the indemnified Party from will be entitled to select its own counsel and assume the defense of any action brought against any Losses by reason it if the indemnifying Party fails to assume such defense, the reasonable expenses of such settlement defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified Party will in good faith cooperate with and assist the indemnifying Party in the prosecution or judgmentdefense of such indemnified claim at no unreasonable expense to the indemnified Party. No indemnifying Party shall, shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the prior written consent of the indemnified Party, effect which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified Party of a release from all liability with respect to such claim. No indemnified Party shall consent to entry of any judgment or enter into any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of moneyaction, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed which has been assumed by an indemnifying Party under Party, without the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense consent of such Claim; or (3) in case of Customerindemnifying Party, pursuant to Section 20.4which consent shall not be unreasonably withheld.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Three Rivers Operating Co Inc.)
Defense. An If any such action is brought against an indemnified party, the indemnifying Party shall, except as provided will be entitled to participate in the immediately following sentence and the last sentence of this paragraph, to assume the defense of such Claimthereof to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, by giving written notice to the indemnified party within thirty (30) days of its receipt of written notice of such action from the indemnified party, and after such notice from the indemnifying Party to represent such indemnified party of the indemnifying Party’s election to assume the defense thereof, the indemnifying Party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof unless the indemnifying Party has failed PURCHASE AND SALE AGREEMENT -49- to assume the defense of such claim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the foregoing to the contrary, the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related party will be entitled to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain select its own counsel and participate in assume the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: any action brought against it if (i) the indemnified party has been advised by counsel that an actual conflict of interest exists between the indemnifying Party and the indemnified Party shall have mutually agreed to party in connection with the retention defense of such counsel; action or proceeding, (ii) the named Parties such action or proceeding seeks injunctive relief with respect to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation claim or is part of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any a criminal proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aaiii) the indemnifying Party fails to provide reasonable assurance select counsel reasonably satisfactory to the indemnified party, in each case, with the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of its financial capacity such indemnified claim at no unreasonable out of pocket expense to defend the indemnified party. No indemnifying Party shall consent to entry of any judgment or provide indemnification enter into any settlement with respect to a claim either (a) without the consent of the indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such Claimclaim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result defense of monetary damages that would be fully reimbursed which has been assumed by an indemnifying Party under Party, without the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense consent of such Claim; or (3) in case of Customerindemnifying Party, pursuant to Section 20.4which consent shall not be unreasonably withheld.
Appears in 1 contract
Defense. An indemnifying The Representative shall have the right, at its option (subject to the limitations set forth in Section 9.2(c) below) and at its own expense, by written notice to Parent (which notice shall not constitute an admission or agreement that indemnification is owed to the Parent Indemnitees hereunder), to assume the entire control of, subject to the right of Parent to participate (at its expense and with counsel of its choice) in, the defense, compromise or settlement of the Third Party shallClaim as to which such Notice of Claim has been given, except as provided and shall be entitled to appoint a recognized and reputable counsel reasonably acceptable to Parent to be the lead counsel in connection with such defense. If the immediately following sentence Representative is permitted and the last sentence of this paragraph, elects to assume the defense of a Third Party Claim: (i) the Representative shall diligently and in good faith defend such Claim, with counsel reasonably satisfactory to the indemnified Third Party to represent the indemnified Party in such proceeding Claim and shall pay keep Parent reasonably informed of the fees and disbursements status of such counsel related to such proceeding. In any such proceedingdefense; provided, any indemnified Party however, that Parent shall have the right to retain its own counsel approve any settlement, which approval will not be unreasonably withheld, delayed or conditioned; and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) Parent and Merger Sub shall cooperate fully in all respects with the named Parties to Representative in any such proceeding (including any impleaded parties) include both defense, compromise or settlement thereof, including, without limitation, the indemnifying Party selection of counsel, and Parent and Merger Sub shall as promptly as practicable make available to the indemnified Party Representative all pertinent information and representation of both Parties by documents under its control. Notwithstanding the same counsel would be inappropriate due foregoing and anything to actual or potential differing interests between them. It is agreed the contrary herein, in the event that the indemnifying Party Representative provides prior written notice to Parent of any settlement or compromise of, or offer to settle or compromise, any third-party claim and Parent or Merger Sub withholds its consent to such settlement or compromise then, in the event indemnification is ultimately determined to be owing to a Parent Indemnitee hereunder, in no event shall not, indemnification be provided to the Parent Indemnitees in respect of such matter in an amount greater than the legal expense of any indemnified Party monetary amount contained in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Partycompromise of, or (y) if such settlement involves only the payment of moneyoffer to settle or compromise, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4third-party claim.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Harmony Merger Corp.)
Defense. An If any such action is brought against an indemnified party, the indemnifying Party shall, except as provided will be entitled to participate in the immediately following sentence and the last sentence of this paragraph, to assume the defense of such Claim, with counsel reasonably satisfactory thereof to the indemnified Party to represent the indemnified Party in such proceeding extent that it may wish, and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) after notice from the indemnifying Party and the to such indemnified Party shall have mutually agreed to the retention party of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and Party’s election to assume the indemnified Party and representation of both Parties by defense thereof, the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable to such indemnified party for any settlement of any proceeding effected without its written consent, but if settled legal or other expenses subsequently incurred by the latter in connection with such consent or if there is a final judgment for the plaintiff, defense thereof unless the indemnifying Party agrees has failed to indemnify assume the indemnified Party from and against any Losses by reason defense of such settlement or judgmentclaim. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or Notwithstanding any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against foregoing to the contrary, the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may party will be entitled to select its own counsel and assume control of the defense of any Claim: (1) action brought against it if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance assume such defense, the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying Party shall consent to entry of its financial capacity to defend any judgment or provide indemnification enter into any settlement with respect to such Claim, a claim either (bba) without the consent of the indemnified Party determines in good faith that there is party, which consent shall not be unreasonably withheld, delayed or conditioned, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a reasonable likelihood that a Claim would materially and adversely affect it release from all liability with PURCHASE AND SALE AGREEMENT 39 respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any other indemnitees other than as a result settlement of monetary damages that would be fully reimbursed any such action, the defense of which has been assumed by an indemnifying Party under Party, without the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense consent of such Claim; or (3) in case of Customerindemnifying Party, pursuant to Section 20.4which consent shall not be unreasonably withheld.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Energy & Exploration Partners, Inc.)
Defense. An indemnifying Party shallWith respect to any Proceeding as to which Indemnitee notifies Xxxxxxx Controls and Tyco Management of the commencement thereof, Xxxxxxx Controls will be entitled to participate in the Proceeding at its own expense and except as otherwise provided in below, to the immediately following sentence and the last sentence of this paragraphextent Xxxxxxx Controls so wishes, it may assume the defense of such Claim, thereof with counsel reasonably satisfactory to Indemnitee. After notice from Xxxxxxx Controls to Indemnitee of its election to assume the indemnified Party defense of any Proceeding, Xxxxxxx Controls shall not be liable to represent Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the indemnified Party in such proceeding and shall pay the fees and disbursements defense of such counsel related to such proceedingProceeding other than reasonable costs of investigation or as otherwise provided below. In any such proceeding, any indemnified Party Indemnitee shall have the right to retain employ legal counsel in such Proceeding, but all Expenses related thereto incurred after notice from Xxxxxxx Controls of its own counsel and participate in assumption of the defense of such Claim, but the fees and expense of such counsel shall be at the Indemnitee’s expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention employment of such counsel; or legal counsel by Xxxxxxxxxx has been authorized by Xxxxxxx Controls, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and Xxxxxxx Controls in the named Parties to any such proceeding defense of the Proceeding, (including any impleaded partiesiii) include both after a Change in Control, the indemnifying Party and the indemnified Party and representation employment of both Parties counsel by Xxxxxxxxxx has been approved by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified PartyIndependent Counsel, or (yiv) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right Xxxxxxx Controls shall not in fact have employed counsel to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; Proceeding, in each of which cases all Expenses of the Proceeding shall be borne by Xxxxxxx Controls to the fullest extent permitted by law. Xxxxxxx Controls shall not be entitled to assume the defense of any Proceeding (x) brought by or on behalf of Tyco Management or Xxxxxxx Controls, (y) as to which Indemnitee shall have made the determination provided for in (ii) above or (3z) after a Change in case Control (it being specified, for the avoidance of Customerdoubt, pursuant to that Xxxxxxx Controls may assume defense of any such proceeding described in this sentence with Xxxxxxxxxx’s consent, provided that any such consent shall not affect the rights of Indemnitee under the foregoing provisions of this Section 20.46(b)).
Appears in 1 contract
Samples: Deed of Indemnification (Johnson Controls International PLC)
Defense. An indemnifying If any civil or administrative action that might reasonably be expected to result in an Indemnifiable Claim (an "Action") is asserted or threatened by a third party against any Indemnified Party, the Indemnifying Party shall, except as provided in the immediately following sentence and the last sentence of this paragraph, assume may elect to control the defense of such Claim, thereof with experienced counsel reasonably satisfactory to the indemnified Party to represent Indemnified Party. Notwithstanding the indemnified Party in such proceeding and shall pay foregoing, if the fees and disbursements Indemnifying Party, within fifteen (15) days after receipt of a notice of such counsel related Action, fails to give written notice to the Indemnified Party that the Indemnifying Party is undertaking the defense thereof or thereafter fails to timely assume such proceeding. In any such proceedingdefense, any indemnified then the Indemnified Party shall have the right to retain its own counsel defend, compromise or settle the Action for the account of the Indemnifying Party. An assertion by the Indemnifying Party of a reservation of rights with respect to such Action shall not constitute a failure to give written notice that it shall undertake such defense. If the Indemnifying Party assumes control of the defense in an Action, it will take all steps necessary in the defense, prosecution, or settlement of such claim or litigation and will hold the Indemnified Party harmless from and against all Losses caused by or arising out of such Action. The Indemnifying Party will not consent to the entry of any judgment or enter into any settlement except with the written consent of the Indemnified Party; provided, however, that the consent of the Indemnified Party shall not be required if all of the following conditions are met: (i) the terms of the judgment or proposed settlement include as an unconditional term thereof the giving to the Indemnified Party by the third party of a release of the Indemnified Party from all liability in respect of such Action; (ii) there is no finding or admission of (A) any violation of law by the Indemnified Party (or any affiliate thereof), and (B) any violation of the rights of any other person; (iii) the judgment or settlement will have no effect on any other Action or claims of a similar nature that may be made against the Indemnified Party (or any affiliate thereof); and (iv) the sole form of relief is monetary damages which are paid in full by the Indemnifying Party. The Indemnifying Party shall conduct the defense of the Action actively and diligently, and the Indemnified Party will provide reasonable cooperation in the defense of the Action. In all cases, the party that is not assigned the right to control the defense shall have the right to participate in the defense of such Claimthe Action at its own expense, but subject to the fees and expense reasonable direction of such counsel shall be at the expense other party. Each of such indemnified Party unless: (i) the indemnifying Indemnifying Party and the indemnified Indemnified Party shall have mutually agreed give all reasonable assistance to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party other party in connection with therewith. In any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiffcase, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Indemnified Party shall, without subject to Section 12.5, make available to the prior written consent of Indemnifying Party and its attorneys, accountants, employees, agents, advisors and consultants, at reasonable times during normal business hours, all books, records, documents, employees, agents, advisors and consultants under its control and relating to such Action or such other matter as to which the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Indemnified Party is or could have been a was required to give notice. The party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume having control of the defense of any Claim: (1) if an Action shall notify the other party of every proposal, oral or written, for settlement, which it irrevocably waives its right to indemnity under this Section 20, receives or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4makes.
Appears in 1 contract
Defense. An indemnifying If a claim by a third party (a "Third Party shallClaim") is made against an SFI Indemnitee arising out of a matter for which the SFI Indemnitee is entitled to be indemnified pursuant to Section 5 hereof, except as provided in the immediately following sentence and the last sentence of this paragraph, Preferred Shareholders may elect to assume the defense or the prosecution thereof. The Preferred Shareholders shall have 30 days (which shall be shortened to 15 days in the case of a commenced lawsuit or proceeding) after receipt of a Notice of Claim to undertake to conduct and control, through counsel of their own choosing as designated by the Shareholder Representative and at their sole risk and expense, the good faith settlement or defense of such Claimclaim, and the SFI Indemnitee(s) shall cooperate fully with counsel reasonably satisfactory the Preferred Shareholders in connection therewith; provided that the SFI Indemnitee(s) shall be entitled to the indemnified Party to represent the indemnified Party participate in such proceeding and shall pay settlement or defense through counsel chosen by it, provided that the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense expenses of such counsel shall be at borne by the expense SFI Indemnitee(s); and provided further that the Preferred Shareholders can only assume the defense if (a) the amount of the Third Party Claim does not exceed the amount of the Escrow Funds held hereunder or (b) the Preferred Shareholders provide commercially reasonable evidence that the Preferred Shareholders will have sufficient financial resources to defend the claim and satisfy their indemnification obligations. During the interim the SFI Indemnitee shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the alleged Loss. The Preferred Shareholders shall obtain the written consent of the SFI Indemnitee prior to ceasing to defend, settling or otherwise disposing of such indemnified Party unless: (i) claim if as a result thereof the indemnifying Party SFI Indemnitee would become subject to injunctive, declaratory or other equitable relief or the business of the SFI Indemnitee would be materially adversely affected in any manner. Whether or not the Preferred Shareholders choose so to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. Such cooperation shall include the retention and the indemnified provision of records and information which are reasonably relevant to such Third Party shall have Claim, and making employees available on a mutually agreed convenient basis to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurredprovide additional information. The indemnifying Party Preferred Shareholders shall not be liable for any settlement of any proceeding such claim effected without its their prior written consent, but which shall not be unreasonably withheld. However, if settled with the Preferred Shareholders, fail to defend such consent claim within the time period necessary to preserve the rights and defense of the SFI Indemnitee, the SFI Indemnitee will have the right to undertake the defense, compromise or if there is a final judgment settlement of such claim on behalf of and for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from account and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent risk of the indemnified PartyPreferred Shareholders, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than subject to the payment of money, (B) involves any finding or admission of any violation of any Law or any right of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right Preferred Shareholders to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; claim at any time within the 30-day time period after receiving Notice of Claim . If a claim is based on any suit or proceeding by a third party for infringement which gives rise to an IP Claim (defined in Section 5) resulting in SFI's use of the Software (defined in Section 2.14 of the Merger Agreement) being enjoined or otherwise restricted, the Preferred Shareholders, if the Preferred Shareholders elect through the Shareholder Representative to assume defense of such proceeding after receiving notice hereunder, shall be entitled at their sole expense to do any of the following: (i) procure for SFI, Clarus CSA, Inc. and their licensees the unrestricted right to continue using the Software, (ii) modify the Software so that it becomes noninfringing, (iii) settle the third party's infringement claim in a manner that gives SFI, Clarus CSA, Inc. and their licensees the unrestricted rights to the software being enjoined or otherwise restricted, or (3iv) pay the indemnified party's claim as provided in case this Agreement, provided that any settlement under this sentence shall require SFI's prior written approval which shall not be unreasonably withheld. SFI shall comply with any settlement or court order made in connection with such proceeding in the foregoing sentence provided that such compliance by SFI shall not limit the Preferred Shareholder's indemnification obligations hereunder. No Preferred Shareholder shall be liable for any settlement of Customerany such claim effected without its prior written consent, pursuant which shall not be unreasonably withheld. Before any claim may be brought against any of the Preferred Shareholders hereunder, or under the Merger Agreement, all the Escrow Funds shall be used first to Section 20.4pay any claims made under Article IX of the Merger Agreement or this Agreement, and SFI hereby authorizes the Preferred Shareholders to settle such claims without consent of SFI to the extent the Escrow Funds will fully satisfy such claim. Preferred Shareholders may also settle any claim for which they are liable hereunder without consent of SFI so long as the payment or performance does not either (y) exhaust the Escrow Funds or (y) exceed the maximum liability amounts set forth below. Settlements requiring performance or payment in excess of the maximum liability amounts shall require SFI's prior written consent.
Appears in 1 contract
Defense. An indemnifying Party shallWith respect to any Proceeding as to which Indemnitee notifies the Company of the commencement thereof, the Company will be entitled to participate in the Proceeding at its own expense and except as otherwise provided in below, to the immediately following sentence and extent the last sentence of this paragraphCompany so wishes, it may assume the defense of such Claim, thereof with counsel reasonably satisfactory to Indemnitee. After notice from the indemnified Party Company to represent Indemnitee of its election to assume the indemnified Party defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in such proceeding and shall pay connection with the fees and disbursements defense of such counsel related to such proceedingProceeding other than reasonable costs of investigation or as otherwise provided below. In any such proceeding, any indemnified Party Indemnitee shall have the right to retain its employ his or her own counsel and participate in such Proceeding, but all Expenses related thereto incurred after notice from the Company of its assumption of the defense of such Claim, but the fees and expense of such counsel shall be at the Indemnitee’s expense of such indemnified Party unless: (i) the indemnifying Party and employment of counsel by Indemnitee has been authorized by the indemnified Party shall have mutually agreed to the retention of such counsel; or Company, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the named Parties Company in the defense of the Proceeding, (iii) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, or (iv) the Company shall not within sixty (60) calendar days in fact have employed counsel to assume the defense of such Proceeding, in each of which case all Expenses of the Proceeding shall be borne by the Company. If two or more persons who may be entitled to indemnification from the Company, including the Indemnitee, are parties to any such proceeding (including any impleaded parties) include both Proceeding, the indemnifying Party and the indemnified Party and representation of both Parties by Company may require Indemnitee to use the same legal counsel would be inappropriate due as the other parties. Indemnitee shall have the right to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the use separate legal expense of any indemnified Party in connection with any proceeding or related proceedings counsel in the same jurisdictionProceeding, but the Company shall not be liable to Indemnitee under this Agreement for the fees and expenses of more than one separate firm (in addition legal counsel incurred after notice from the Company of the requirement to use the same legal counsel as the other parties, unless the Indemnitee reasonably concludes that there may be a conflict of interest between Indemnitee and any local of the other parties required by the Company to be represented by the same legal counsel) for all . In the event separate counsel is retained by an Indemnitee pursuant to this Section 6(b), the Company shall cooperate with Indemnitee with respect to the defense of the Proceeding, including making documents, witnesses and other reasonable information related to the defense available to the Indemnitee and such indemnified Parties and that all such fees and expenses shall be reimbursed separate counsel pursuant to joint-defense agreements or confidentiality agreements, as they are incurredappropriate. The indemnifying Party Company shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees entitled to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (1ii) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4above.
Appears in 1 contract
Samples: Indemnification Agreement (Electro Scientific Industries Inc)
Defense. An indemnifying The Indemnified Party shallintending to claim indemnification under this ARTICLE VIII shall promptly notify the Indemnifying Party of any Action or Loss in respect of which the Indemnified Party intends to claim such indemnification, except as provided in the immediately following sentence and the last sentence of this paragraph, Indemnifying Party shall be entitled to assume and control the defense of such Claim, thereof (with counsel reasonably satisfactory to selected by the indemnified Party to represent the indemnified Party in Indemnifying Party) whether or not such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingAction is rightfully brought; provided, any indemnified however, that an Indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claimcounsel, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (to be paid by the Indemnified Party, unless Indemnifying Party does not assume the defense, in addition to any local counsel) for all such indemnified Parties and that all such which case the reasonable fees and expenses of counsel retained by the Indemnified Party shall be reimbursed as they are incurredpaid by the Indemnifying Party. The indemnifying Indemnified Party, and its employees and agents, shall cooperate fully with the Indemnifying Party and its legal representatives in the investigation and defense of any Action or Loss. The Indemnifying Party shall not be liable for any settlement the indemnification of any proceeding effected Action or Loss settled (or resolved by consent to the entry of judgment) without its the written consentconsent of the Indemnifying Party. Also, but if settled with the Indemnifying Party shall control the defense of any such consent or if there is a final judgment for the plaintiffAction, the indemnifying Indemnifying Party agrees shall have the right to indemnify settle such Action; provided, that the indemnified Indemnifying Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without shall obtain the prior written consent (which shall not be unreasonably withheld or delayed) of the indemnified Party, effect Indemnified Party before entering into any settlement of any pending (or threatened proceeding in respect resolving by consent to the entry of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by judgment upon) such indemnified Party: (x) if such settlement; Action unless (A) involves any form of relief other than the payment of money, (B) involves any there is no finding or admission of any violation of any Law law or any violation of the rights of any Person by an Indemnified Party, no requirement that the Indemnified Party admit fault or (C) has any culpability, and no adverse effect on any other Claims claims that have been or may be made by or against the indemnified Party, or Indemnified Party and (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aaB) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there sole relief provided is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed are paid in full by an indemnifying the Indemnifying Party under or its insurer and such settlement does not require the Agreement, Indemnified Party to take (or (ccrefrain from taking) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4any action.
Appears in 1 contract
Samples: Patent Security Agreement (Ligand Pharmaceuticals Inc)
Defense. An indemnifying (i) In the case of a third party claim, the Indemnifying Party shall, except as provided may participate in the immediately following sentence defense thereof and, if it so chooses and irrevocably acknowledges its obligation to indemnify the last sentence of this paragraphIndemnified Party therefor, assume control the defense of such Claim, an Indemnifiable Claim with counsel reasonably satisfactory to the indemnified Indemnified Party; provided, however, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with respect to represent the indemnified Party in such proceeding claim or its defense exists or is likely to develop during the pendency of the litigation, and shall pay the fees and disbursements as a result of such counsel related conflict, the Indemnifying Party's incentive to defend such proceedingclaim could reasonably be expected to be materially compromised, or (y) the claim raises serious issues regarding the integrity or moral character of the Indemnified Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the Indemnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party's rights as set forth in this clause (y). In any such proceedingall cases, any indemnified Party shall have the party without the right to retain its own counsel and control the defense of the Indemnifiable Claim may participate in the defense at its own expense. In the case of such Claima third party claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Indemnifying Party shall have mutually agreed inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to control the retention of such counsel; or (ii) defense and irrevocably acknowledges its obligation to indemnify the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Indemnified Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between themtherefor. It is agreed that the indemnifying The Indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the parties shall endeavor in addition good faith to any local counsel) for all settle such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurreddispute. The indemnifying Indemnifying Party shall not be liable for any settlement of any settle or compromise a third party claim or legal proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Indemnified Party, effect which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any settlement Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Substances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of any pending third party claim or threatened proceeding litigation resulting therefrom within 20 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in respect such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of which the limitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any indemnified Party is uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; Purchaser, the parties will (A) involves any form cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of relief other than the payment of moneySeller Indemnitors or Purchaser, (B) involves any finding or admission until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any violation of any Law or any of the rights of any Person or such Indemnifiable Claim and how such defense and settlement will be handled, (C) has cooperate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out-of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties' respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense, including any adverse effect on any other Claims that have been or joint defense agreement which may be made against entered into by the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4parties.
Appears in 1 contract
Defense. An indemnifying If a claim by a third party (a "Third Party shallClaim") is made ------- ----------------- against an SFI Indemnitee arising out of a matter for which the SFI Indemnitee is entitled to be indemnified pursuant to Section 5 hereof, except as provided in the immediately following sentence and the last sentence of this paragraph, Preferred Shareholders may elect to assume the defense or the prosecution thereof. The Preferred Shareholders shall have 30 days (which shall be shortened to 15 days in the case of a commenced lawsuit or proceeding) after receipt of a Notice of Claim to undertake to conduct and control, through counsel of their own choosing as designated by the Shareholder Representative and at their sole risk and expense, the good faith settlement or defense of such Claimclaim, and the SFI Indemnitee(s) shall cooperate fully with counsel reasonably satisfactory the Preferred Shareholders in connection therewith; provided that the SFI Indemnitee(s) shall be entitled to the indemnified Party to represent the indemnified Party -------- participate in such proceeding and shall pay settlement or defense through counsel chosen by it, provided that the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense expenses of such counsel shall be at borne by the expense SFI Indemnitee(s); and provided further that the Preferred Shareholders can only assume the defense if (a) the amount of the Third Party Claim does not exceed the amount of the Escrow Funds held hereunder or (b) the Preferred Shareholders provide commercially reasonable evidence that the Preferred Shareholders will have sufficient financial resources to defend the claim and satisfy their indemnification obligations. During the interim the SFI Indemnitee shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the alleged Loss. The Preferred Shareholders shall obtain the written consent of the SFI Indemnitee prior to ceasing to defend, settling or otherwise disposing of such indemnified Party unless: (i) claim if as a result thereof the indemnifying Party SFI Indemnitee would become subject to injunctive, declaratory or other equitable relief or the business of the SFI Indemnitee would be materially adversely affected in any manner. Whether or not the Preferred Shareholders choose so to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. Such cooperation shall include the retention and the indemnified provision of records and information which are reasonably relevant to such Third Party shall have Claim, and making employees available on a mutually agreed convenient basis to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurredprovide additional information. The indemnifying Party Preferred Shareholders shall not be liable for any settlement of any proceeding such claim effected without its their prior written consent, but which shall not be unreasonably withheld. However, if settled with the Preferred Shareholders, fail to defend such consent claim within the time period necessary to preserve the rights and defense of the SFI Indemnitee, the SFI Indemnitee will have the right to undertake the defense, compromise or if there is a final judgment settlement of such claim on behalf of and for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from account and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent risk of the indemnified PartyPreferred Shareholders, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than subject to the payment of money, (B) involves any finding or admission of any violation of any Law or any right of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right Preferred Shareholders to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such claim at any time within the 30-day time period after receiving Notice of Claim; . If a claim is based on any suit or proceeding by a third party for infringement which gives rise to an IP Claim (defined in Section 5) resulting in SFI's use of the Software (defined in Section 2.14 of the Merger Agreement) being enjoined or otherwise restricted, the Preferred Shareholders, if the Preferred Shareholders elect through the Shareholder Representative to assume defense of such proceeding after receiving notice hereunder, shall be entitled at their sole expense to do any of the following: (i) procure for SFI, Clarus CSA, Inc. and their licensees the unrestricted right to continue using the Software, (ii) modify the Software so that it becomes noninfringing, (iii) settle the third party's infringement claim in a manner that gives SFI, Clarus CSA, Inc. and their licensees the unrestricted rights to the software being enjoined or otherwise restricted, or (3iv) pay the indemnified party's claim as provided in case this Agreement, provided that any settlement under this sentence shall require SFI's prior written approval which shall not be unreasonably withheld. SFI shall comply with any settlement or court order made in connection with such proceeding in the foregoing sentence provided that such compliance by SFI shall not limit the Preferred Shareholder's indemnification obligations hereunder. No Preferred Shareholder shall be liable for any settlement of Customerany such claim effected without its prior written consent, pursuant which shall not be unreasonably withheld. Before any claim may be brought against any of the Preferred Shareholders hereunder, or under the Merger Agreement, all the Escrow Funds shall be used first to Section 20.4pay any claims made under Article IX of the Merger Agreement or this Agreement, and SFI hereby authorizes the Preferred Shareholders to settle such claims without consent of SFI to the extent the Escrow Funds will fully satisfy such claim. Preferred Shareholders may also settle any claim for which they are liable hereunder without consent of SFI so long as the payment or performance does not either (y) exhaust the Escrow Funds or (y) exceed the maximum liability amounts set forth below. Settlements requiring performance or payment in excess of the maximum liability amounts shall require SFI's prior written consent.
Appears in 1 contract
Defense. An indemnifying If the facts pertaining to an indemnification loss arise out of the claim of a third party (other than Parent and its Affiliates, on the one hand and Shareholder and his Affiliates, on the other, whichever is entitled to indemnification for such matter) and indemnification is available by virtue of the circumstances of the indemnification loss, the Indemnifying Party shallhas the right, except as provided in to be exercised by delivering written notice to the immediately following sentence Indemnified Party within thirty (30) days of receipt of a Required Notice, to assume and control the last sentence defense or the prosecution thereof, including the employment of this paragraphcounsel or accountants, assume at its own expense. The assumption of the defense of such Claim, with counsel reasonably satisfactory an indemnification claim by the Indemnifying Party shall not be construed as an acknowledgement that the Indemnifying Party is liable to indemnify the indemnified Party to represent the indemnified Indemnified Party in such proceeding and shall pay the fees and disbursements respect of such counsel related to indemnification claim, nor shall it constitute a waiver by the Indemnifying Party of any defenses it may assert against the Indemnified Party’s claim for indemnification If the Indemnifying Party assumes the defense of any third party claim or litigation, the obligations of the Indemnifying Party under this Agreement shall include taking all steps necessary in the investigation, defense or settlement of such proceedingclaim or litigation (including the retention of legal counsel) and holding the Indemnified Party harmless from and against any and all losses caused by or arising out of any settlement approved by the Indemnified Party or any judgment in connection with such claim or litigation. In any such proceeding, any indemnified The Indemnifying Party shall have the right to retain its own counsel and participate not, in the defense of such Claimclaim or litigation, but consent to entry of any judgment (except with the fees and expense written consent of the Indemnified Party), or enter into any settlement (except with the written consent of the Indemnified Party): (a) that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a complete release from, all liability in respect of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counselclaim or litigation; or (iib) the named Parties effect of which is to permit any injunction, declaratory judgment, other order or other equitable relief to be entered, directly or indirectly, against any Indemnified Party. The Indemnifying Party shall permit the Indemnified Party to participate in such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties defense or settlement through counsel chosen by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall notIndemnified Party, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition such counsel borne by the Indemnified Party. Whether or not the Indemnifying Party chooses to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to so defend or provide prosecute any such indemnification with respect to such Claimclaim, (bb) all the indemnified Party determines parties hereto shall cooperate in good faith that there is and in a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume manner in the defense of or prosecution thereof and shall furnish such Claim; or (3) records, materials, information, witnesses and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in case of Customer, pursuant to Section 20.4connection therewith.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Nexxus Lighting, Inc.)
Defense. An indemnifying Party shallWith respect to any Proceeding as to which Indemnitee notifies Xxxxxxx Controls and Tyco Management of the commencement thereof, Xxxxxxx Controls will be entitled to participate in the Proceeding at its own expense and except as otherwise provided in below, to the immediately following sentence and the last sentence of this paragraphextent Xxxxxxx Controls so wishes, it may assume the defense of such Claim, thereof with counsel reasonably satisfactory to Indemnitee. After notice from Xxxxxxx Controls to Indemnitee of its election to assume the indemnified Party defense of any Proceeding, Xxxxxxx Controls shall not be liable to represent Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the indemnified Party in such proceeding and shall pay the fees and disbursements defense of such counsel related to such proceedingProceeding other than reasonable costs of investigation or as otherwise provided below. In any such proceeding, any indemnified Party Indemnitee shall have the right to retain employ legal counsel in such Proceeding, but all Expenses related thereto incurred after notice from Xxxxxxx Controls of its own counsel and participate in assumption of the defense of such Claim, but the fees and expense of such counsel shall be at the Indemnitee’s expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention employment of such counsel; or legal counsel by Indemnitee has been authorized by Xxxxxxx Controls, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and Xxxxxxx Controls in the named Parties to any such proceeding defense of the Proceeding, (including any impleaded partiesiii) include both after a Change in Control, the indemnifying Party and the indemnified Party and representation employment of both Parties counsel by Indemnitee has been approved by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified PartyIndependent Counsel, or (yiv) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right Xxxxxxx Controls shall not in fact have employed counsel to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; Proceeding, in each of which cases all Expenses of the Proceeding shall be borne by Xxxxxxx Controls to the fullest extent permitted by law. Xxxxxxx Controls shall not be entitled to assume the defense of any Proceeding (x) brought by or on behalf of Tyco Management or Xxxxxxx Controls, (y) as to which Indemnitee shall have made the determination provided for in (ii) above or (3z) after a Change in case Control (it being specified, for the avoidance of Customerdoubt, pursuant to that Xxxxxxx Controls may assume defense of any such proceeding described in this sentence with Indemnitee’s consent, provided that any such consent shall not affect the rights of Indemnitee under the foregoing provisions of this Section 20.46(b)).
Appears in 1 contract
Defense. An If any of the indemnified parties is made or threatened to be ------- made a defendant in or party to any action or proceeding, judicial or administrative, instituted by any third party for the liability under which or the costs or expenses of which any of the indemnified parties is entitled to be indemnified pursuant to this Paragraph I (any such third party action or proceeding being referred to as an "Indemnification Claim"), the indemnified party or parties shall give prompt notice thereof to the indemnifying Party shallparty; provided that the failure to give such notice shall not affect the indemnified -------- party or parties' ability to seek indemnification hereunder unless such failure has materially and adversely affected the indemnifying party or parties' ability to prosecute successfully an Indemnification Claim. Each indemnified party shall permit the indemnifying party, except as provided in the immediately following sentence and the last sentence of this paragraphat its own expense, to assume the defense of any such Claimclaim or any litigation to which this Paragraph 1 may be applicable, with by counsel reasonably satisfactory to the indemnified Party to represent party or parties; provided, that the indemnified Party party or parties shall be entitled at any time, -------- at its or their own cost and expense (which expense shall not be recoverable from the indemnifying party unless the indemnifying party is not adequately representing or, because of a conflict of interest, may not adequately represent, the indemnified party or parties' interests), to participate in such claim, action or proceeding and shall pay to be represented by attorneys of its or their own choosing. If the fees and disbursements indemnified party or parties elects to participate in such defense, such party or parties will cooperate with the indemnifying party in the conduct of such counsel related to such proceedingdefense. In The indemnified party or parties may not concede, settle or compromise any such proceedingIndemnification Claim without the consent of the indemnifying party. The indemnifying party, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual claim or potential differing interests between them. It is agreed that the indemnifying Party litigation, shall not, in respect except with the approval of the legal expense each indemnified party, consent to entry of any indemnified Party in connection with judgment or enter into any proceeding settlement which does not include as an unconditional term thereof the giving by the claimant or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition plaintiff to any local counsel) for all such indemnified Parties party or parties of a full and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party complete release from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with in respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it claim or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4litigation.
Appears in 1 contract
Defense. An If a claim by a third party is made against any party entitled to indemnification under this Agreement, such Indemnified Party shall promptly (i.e., within five (5) business days of the Indemnified Party having actual knowledge of such claim) notify the indemnifying party of such claim. The indemnifying party shall have ten (10) business days after receipt of the above-referenced notice to undertake, through counsel of its choosing (subject to the reasonable consent of the Indemnified Party) and at the expense of the indemnifying party, the settlement or defense thereof; provided, however, that any such settlement shall be subject to the written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. If approval of the monetary terms of any such proposed settlement is not given, then the Indemnifying Party's maximum monetary obligation for any future settlement or judgment shall be the amount of the settlement that was not so approved. If the indemnifying party does not notify the Indemnified Party shall, except as provided in within ten (10) business days after receipt of the immediately following sentence and Indemnified Party's notice of a claim of indemnity hereunder that the last sentence of this paragraph, assume indemnifying party elects to undertake the defense of thereof, or the indemnifying party ceases to reasonably contest such Claimclaim in good faith, with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Indemnified Party shall have the right to retain its own counsel and participate in contest, settle or compromise the defense of such Claim, but the fees and expense of such counsel shall be claim at the expense of such indemnified Party unless: (i) the indemnifying Party party and the indemnified Party shall have mutually agreed subject to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Partyindemnifying party, effect any settlement of any pending which shall not be unreasonably withheld, conditioned or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceedingdelayed. An indemnified Party may assume control of In connection with the defense of any Claim: (1) if it irrevocably waives claim, each party will make available to the party controlling such defense, any books, records or other documents within its control that are reasonably requested in the course of such defense. Nothing contained in this Section 9.3.2 shall be construed as a limitation on the right of any party to indemnity indemnification under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4.
Appears in 1 contract
Defense. An indemnifying (i) In the case of a third party claim, the Indemnifying Party shall, except as provided may participate in the immediately following sentence defense thereof and, if it so chooses and irrevocably acknowledges its obligation to indemnify the last sentence of this paragraphIndemnified Party therefor, assume control the defense of such Claim, an Indemnifiable Claim with counsel reasonably satisfactory to the indemnified Indemnified Party; provided, however, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with respect to represent the indemnified Party in such proceeding claim or its defense exists or is likely to develop during the pendency of the litigation, and shall pay the fees and disbursements as a result of such counsel related conflict, the Indemnifying Party's incentive to defend such proceedingclaim could reasonably be expected to be materially compromised, or (y) the claim raises serious issues regarding the integrity or moral character of the Indemnified Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the In- demnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party's rights as set forth in this clause (y). In any such proceedingall cases, any indemnified Party shall have the party without the right to retain its own counsel and control the defense of the Indemnifiable Claim may participate in the defense at its own expense. In the case of such Claima third party claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Indemnifying Party shall have mutually agreed inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to control the retention of such counsel; or (ii) defense and irrevocably acknowledges its obligation to indemnify the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Indemnified Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between themtherefor. It is agreed that the indemnifying The Indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the parties shall endeavor in addition good faith to any local counsel) for all settle such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurreddispute. The indemnifying Indemnifying Party shall not be liable for any settlement of any settle or compromise a third party claim or legal proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Indemnified Party, effect which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any settlement Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Substances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of any pending third party claim or threatened proceeding litigation resulting therefrom within 20 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in respect such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of which the limitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any indemnified Party is uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; Purchaser, the parties will (A) involves any form cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of relief other than the payment of moneySeller Indemnitors or Purchaser, (B) involves any finding or admission until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any violation of any Law or any of the rights of any Person or such Indemnifiable Claim and how such defense and settlement will be handled, (C) has cooperate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out- of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties' respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense, including any adverse effect on any other Claims that have been or joint defense agreement which may be made against entered into by the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4parties.
Appears in 1 contract
Defense. An In the event any action, suit or proceeding (a "LEGAL ACTION") is brought against an indemnified party, with respect to which the indemnifying Party party may have liability under an indemnity agreement contained herein, the Legal Action shall, except upon the written agreement of the indemnifying party that it is obligated to indemnify under such indemnity agreement, be defended by the indemnifying party and such defense shall include all proceedings on appeal or for review which counsel for the defendant shall deem appropriate. The indemnified party shall have the right to be represented by counsel and accountants, at its own expense, and shall be kept fully informed as provided to such Legal Action at all stages thereof whether or not it is represented by its own counsel. Until the indemnifying party shall have so assumed the defense of any Legal Action, or if the indemnified party shall have reasonably concluded that there are likely to be defenses available to the indemnified party that are different from or in addition to those available to the immediately following sentence and indemnifying party (in which case the last sentence of this paragraph, indemnifying party shall not be entitled to assume the defense of such Claim, with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party Legal Action but shall have the right to retain be represented by counsel and accountants, at its own counsel expense, and participate in the defense of such Claim, but the fees and expense of such counsel shall be kept fully informed as to such Legal Action at all stages thereof whether or not represented by its own counsel), all legal or other expenses reasonably incurred by the expense of such indemnified Party unless: (i) party shall be borne by the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurredparty. The indemnifying Party party shall not be liable for any settlement make available to the indemnified party and its attorneys and accountants all books and records of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees party relating to indemnify such Legal Action and the indemnified Party from parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to facilitate the proper and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the adequate defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4Legal Action.
Appears in 1 contract
Defense. An indemnifying In the event any Third Party shallshall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters covered by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within thirty (30) days after written notice by the Indemnified Party (the “Notice”) to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the immediately following sentence next sentence, the Indemnifying Party shall have the option, at its sole cost and the last sentence of this paragraphexpense, assume to retain counsel to defend any such demand, claim or lawsuit; provided that counsel who will conduct the defense of such Claimdemand, with counsel reasonably satisfactory to claim or lawsuit will be approved by the indemnified Indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceedingwhose approval will not unreasonably be withheld. In any such proceeding, any indemnified The Indemnified Party shall have the right to retain right, at its own counsel and expense, to participate in the defense of such Claimany suit, but the fees and expense of such counsel shall action or proceeding brought against it with respect to which indemnification may be at the expense of such indemnified Party unless: sought hereunder; provided, if (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties parties to any such proceeding (including any impleaded interpleaded parties) include both the indemnifying Indemnifying Party and the indemnified Party and Indemnified Party, representation of both Parties parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that , and the indemnifying Indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable has not retained separate counsel for the fees and expenses Indemnified Party, (ii) the employment of more than one separate firm (counsel by such Indemnified Party has been authorized in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall writing by the Indemnifying Party, which authorization will not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Partyunreasonably withheld, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aaiii) the indemnifying Indemnifying Party fails has not in fact employed counsel to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claimaction within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within thirty (330) days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in case its sole discretion deem proper, at the sole cost and expense of Customerthe Indemnifying Party, pursuant which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to Section 20.4provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party’s defense of the action is actually prejudiced by such failure. The assumption of the defense or the non-assumption of the defense, by the purported Indemnifying Party will not affect such party’s right to dispute its obligation to provide indemnification hereunder.
Appears in 1 contract
Samples: Share Acquisition Agreement (Intelligent Highway Solutions, Inc.)
Defense. An indemnifying In the case of a third party claim, the Indemnifying Party shall, except as provided may participate in the immediately following sentence defense thereof and, if it so chooses and acknowledges its obligation to indemnify the last sentence of this paragraphIndemnified Party therefore, assume control the defense of such Claim, an Indemnifiable Claim with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceedingIndemnified Party. In any such proceedingall cases, any indemnified Party shall have the party without the right to retain its own counsel and control the defense of the Indemnifiable Claim may participate in the defense at its own expense. In the case of such Claima third party claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Indemnifying Party shall have mutually agreed inform the Indemnified Party within 14 days of receiving the written notice seeking indemnification whether the party elects to control the retention of such counsel; or (ii) defense and acknowledges its obligation to indemnify the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Indemnified Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between themtherefor. It is agreed that the indemnifying The Indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof, provided that it either acknowledges in writing its indemnity obligations with respect to the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the parties shall endeavor in addition good faith to any local counsel) for all settle such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurreddispute. The indemnifying Indemnifying Party shall not be liable for any settlement of any settle or compromise a third party claim or legal proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Indemnified Party, effect which consent shall not be unreasonably withheld or delayed; provided that such prior written consent shall not be required with respect to any settlement Indemnifiable Claim that is an Excluded Liability, except that any Indemnifiable Claim relating to Hazardous Substances remain subject in all respect to the terms of Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of any pending third party claim or threatened proceeding litigation resulting therefrom within 14 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in respect such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of which the limitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any indemnified Party is uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; the Purchaser Indemnitors, the parties will (A) involves any form cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of relief other than the payment of moneySeller Indemnitors or the Purchaser Indemnitors, (B) involves any finding or admission until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any violation of any Law or any of the rights of any Person or such Indemnifiable Claim and how such defense and settlement will be handled, (C) has any adverse effect on any cooperate with each other Claims that have been or may be made against in the indemnified Party, or (y) if such defense and settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party Indemnifiable Claim and the exchange of all liability on claims that are information relevant thereto, (D) unless otherwise agreed, share the subject out-of-pocket costs of such proceeding. An indemnified Party may assume control defense and settlement (including the costs of investigation, response and mitigation) equally until the parties' respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance such Indemnifiable Claim as a joint and common defense pursuant to the indemnified Party Joint Defense and Common Interest Agreement dated as of its financial capacity to defend or provide indemnification with respect to such ClaimOctober 8, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially 2003, as amended, between Dynegy and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4Exelon.
Appears in 1 contract
Samples: Purchase Agreement (Dynegy Inc /Il/)
Defense. An indemnifying If any Indemnified Party shalllearns of any matter which may give rise to a claim for indemnification against an Indemnifying Party under this Article XI, except as provided then the Indemnified Party shall notify the Indemnifying Party thereof promptly and in any event within five (5) Business Days after receiving any written notice from a third party; provided, however, that no delay on the immediately following sentence part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless, and then solely to the last sentence extent that, the Indemnifying Party is materially prejudiced thereby. Once the Indemnified Party has given notice of this paragraphthe matter to the Indemnifying Party, the Indemnified Party may, subject to the Indemnifying Party's rights to assume the defense thereof, defend against the matter in any manner it reasonably may deem appropriate. In the event the Indemnifying Party notifies the Indemnified Party (after the date the Indemnified Party has given notice of the matter) that the Indemnifying Party is assuming the defense of such Claimmatter, the Indemnifying Party shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the indemnified Party to represent Indemnified Party. Notwithstanding the indemnified Party in such proceeding and shall pay foregoing, the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Indemnified Party shall have the right to retain employ its own counsel and participate in the defense of any such Claimcase, but the fees and expense expenses of such counsel shall be at the expense of such indemnified the Indemnified Party unless: unless (i) the indemnifying Party and the indemnified Party employment of such counsel shall have mutually agreed to been authorized in writing by the retention of such counsel; or Indemnifying Party, (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Indemnifying Party shall notnot have employed counsel to fully and properly take charge of the defense of such action within a reasonable time after notice of commencement of the action or (iii) the Indemnified Party shall have reasonably concluded that there are defenses available to it that are different from or additional to those available to one or more of the Indemnifying Parties (in which case the Indemnifying Parties shall not have the right to direct the defense of such action on behalf of the Indemnified Party with respect to such different defenses), in respect any of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all which events such fees and expenses shall be reimbursed as they are incurredborne by the Indemnifying Party. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control Assumption of the defense of any Claim: (1) if it irrevocably waives its matter by the Indemnifying Party shall not prejudice the right of the Indemnifying Party to indemnity under claim at a later date that such third party action is not a proper matter for indemnification pursuant to this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Article XI. The Indemnified Party fails to provide reasonable assurance shall not consent to the indemnified Party entry of its financial capacity to defend a judgment or provide indemnification enter into any settlement with respect to such Claimany matter which may give rise to a claim for indemnification without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. The Indemnifying Party shall not consent to the entry of a judgment with respect to any matter which may give rise to a claim for indemnification or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Damages with respect thereto, without the written consent of the Indemnified Party (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it not to be unreasonably withheld or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4delayed).
Appears in 1 contract
Samples: Purchase Agreement (NHP Inc)
Defense. An indemnifying If the facts relating to a Loss arise out a Third Party shallClaim, except as provided in or if there is any claim against a third party available by virtue of the immediately circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following sentence and its receipt of the last sentence notice of this paragraphsuch claim, elect to assume the defense or the prosecution thereof, including the employment of such Claimcounsel or accountants, with counsel reasonably satisfactory to the indemnified Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to represent take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceedingLoss. In any such proceeding, any indemnified The Indemnified Party shall have the right to retain its own employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in the defense of such Claimtherein, but the fees and expense expenses of such counsel shall be at the expense Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such indemnified counsel it is advisable for such Indemnified Party unless: to employ separate counsel, or (ic) the indemnifying Party Indemnity Obligor has failed to assume the defense of such action and the indemnified Party shall have mutually agreed employ counsel reasonably satisfactory to the retention of Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such counsel; claim, all the parties hereto shall cooperate in the defense or (ii) the named Parties to any prosecution thereof and shall furnish such proceeding (including any impleaded parties) include both the indemnifying Party records, information and the indemnified Party testimony and representation of both Parties by the same counsel would shall attend such conferences, discovery proceedings and trial as may be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party reasonably requested in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurredtherewith. The indemnifying Party Indemnity Obligor shall not be liable for any settlement of any proceeding such claim effected without its prior written consent, but if settled . In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with such consent or if there is any Loss arising out of a final judgment for the plaintiffThird Party Claim, the indemnifying Party agrees Indemnity Obligor shall be subrogated to indemnify and shall stand in the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent place of the indemnified Party, effect Indemnified Party as to any settlement of any pending events or threatened proceeding circumstances in respect of which the Indemnified Party may have any indemnified Party is right or could have been a claim against such third party and indemnity could have been sought hereunder by relating to such indemnified Party: (x) if such settlement; (A) involves matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any form of relief other than subrogated claim. The Indemnity Obligor will take no action in 44 connection with any claim that would adversely affect the payment of money, (B) involves any finding or admission of any violation of any Law or any Indemnified Party without the consent of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Venture Catalyst Inc)
Defense. An indemnifying (a) If the facts relating to a Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party shallwithin 15 days following its receipt of the notice of such claim, except as provided in elect to assume the immediately following sentence defense or the prosecution thereof, including the employment of counsel or accountants at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. If notice is given to the Indemnity Obligor of the commencement of any Proceeding and the last sentence indemnifying party does not, within 15 days after the Indemnified Party's notice is given, give notice to the Indemnified Party of this paragraph, its election to assume the defense of such ClaimProceeding, with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party indemnifying party will be bound by any determination made in such proceeding and shall pay Proceeding or any compromise or settlement effected by the fees and disbursements of such counsel related to such proceedingIndemnified Party. In any such proceeding, any indemnified The Indemnified Party shall have the right to retain its own employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in the defense of such Claimtherein, but the fees and expense expenses of such counsel shall be at the expense Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party will have been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such indemnified counsel it is advisable for such Indemnified Party unless: to employ separate counsel, or (ic) the indemnifying Party and Indemnity Obligor has failed to assume the indemnified Party shall have mutually agreed defense of such action or employ counsel reasonably satisfactory to the retention of Indemnified Party. Whether or not the Indemnity Obligor chooses so to defend or prosecute such counsel; claim, all the parties hereto shall cooperate in the defense or (ii) the named Parties to any prosecution thereof and shall furnish such proceeding (including any impleaded parties) include both the indemnifying Party records, information and the indemnified Party testimony and representation of both Parties by the same counsel would shall attend such conferences, discovery proceedings and trials as may be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party reasonably requested in connection with any proceeding or related proceedings therewith. Except as previously set forth in this Section 13.04, the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party Indemnity Obligor shall not be liable for any settlement of any proceeding such claim effected without its prior written consent, but if settled . In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with such consent or if there is any Loss arising out of a final judgment for the plaintiffthird party claim, the indemnifying Party agrees Indemnity Obligor shall be subrogated to indemnify and shall stand in the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent place of the indemnified Party, effect Indemnified Party as to any settlement of any pending events or threatened proceeding circumstances in respect of which the Indemnified Party may have any indemnified right or claim against such third party relating to such Indemnified Matter. The Indemnified Party is shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party including any compromise or could have been a party and indemnity could have been sought hereunder by settlement of such indemnified Party: (x) if such settlement; (A) involves any form of relief other than claims without the payment of money, (B) involves any finding or admission of any violation of any Law or any consent of the rights of any Person or Indemnified Party. (Cb) has any adverse effect on any other Claims that have been or may be made against Notwithstanding the indemnified Partyforegoing, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Indemnified Party determines in good faith that there is a reasonable likelihood probability that a Claim would materially and Proceeding may adversely affect it or any other indemnitees its affiliates other than as a result of monetary damages that for which such Indemnified Party would be fully reimbursed by an indemnifying Party entitled to indemnification under the this Agreement, or (cc) the Indemnified Party may, by notice to the indemnifying Party refuses or fails to timely party, assume the defense exclusive right to defend, compromise, or settle such Proceeding, but the indemnifying party will not be bound by any determination of such Claim; a Proceeding so defended or any compromise or settlement effected without its consent (3) in case of Customer, pursuant to Section 20.4.which may not be unreasonably withheld). 13.05
Appears in 1 contract
Defense. An indemnifying Party shallIn case any claim, except demand or deficiency (a "CLAIM") is asserted or any action is commenced or notice is given of any administrative or other proceeding against the person(s) and/or entities seeking indemnity under this SECTION 11 (hereinafter referred to as provided the "INDEMNITEE") in respect of which such indemnity is sought hereunder (each and all of such persons and entities being hereinafter referred to as the "INDEMNITOR") pursuant to this SECTION 11, Indemnitee shall give prompt notice thereof in writing to Indemnitor. Within thirty (30) days after receipt of such notice (or prior to such earlier date as any answer in any administrative or other proceeding is due), Indemnitor may give Indemnitee written notice of its election to conduct the defense of such Claim at its own expense. If Indemnitor has given Indemnitee such notice of election to conduct the defense, Indemnitee shall nevertheless have the right to participate in the immediately following sentence and defense thereof, but such participation shall be solely at its expense. If Indemnitor shall not notify Indemnitee in writing (within the last sentence time hereinabove provided) of this paragraph, assume its election to conduct the defense of such Claim, with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, Indemnitee may (but the fees and expense of such counsel shall be need not) conduct (at the expense of such indemnified Party unless: (iIndemnitor) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume . The party assuming the defense of a Claim hereunder (the "DEFENDING PARTY") shall notify the other party of its intention to settle, compromise or satisfy any such Claim; Claim and may make such settlement, compromise or satisfaction unless such other party (3the "ASSUMING PARTY") shall notify the Defending Party in case writing (within thirty (30) days after receipt of Customersuch notice of intention to settle, pursuant compromise or satisfy) of its election to Section 20.4assume (at its sole expense) the defense of any such Claim and promptly thereafter take appropriate action to implement such defense. The Assuming Party shall indemnify the Defending Party and hold it harmless against any losses in excess of the amount of losses the Defending Party would have incurred if the proposed settlement had been agreed upon. Indemnitee shall cooperate with Indemnitor in such defense, at Indemnitor's cost, and Indemnitee shall provide reasonable assistance of Indemnitee's employees in connection with such defense.
Appears in 1 contract
Samples: Manufacturing Agreement (Gumtech International Inc \Ut\)
Defense. An If any Proceeding referred to in Section 10.10.1 is brought against an indemnified party and it gives notice to the indemnifying Party shall, except as provided in party of the immediately following sentence and the last sentence of this paragraph, assume the defense commencement of such Proceeding, the indemnifying party will, unless the claim is a Tax Claim, with counsel reasonably satisfactory be entitled to participate in such Proceeding and, to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: extent that it wishes (unless (i) the indemnifying Party party is also a party to such Proceeding and the indemnified Party shall have mutually agreed to the retention of such counsel; party determines in good faith that joint representation would be inappropriate, or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party party of its financial capacity to defend or such Proceeding and provide indemnification with respect to such ClaimProceeding), (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such ClaimProceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party’s consent unless (3A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, and (B) the sole relief provided is monetary damages that are paid in case full by the indemnifying party; and (iii) the indemnifying party will have no liability with respect to any compromise or settlement of Customersuch claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the indemnifying party does not, pursuant within ten days after the indemnified party’s notice is given, give notice to Section 20.4the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the indemnified party.
Appears in 1 contract
Samples: Stock Purchase Agreement (Management Network Group Inc)
Defense. An indemnifying Upon receipt of notice under Section 11.3.1 (Notice) from the Indemnitee, the Indemnifying Party shallwill have the duty to either compromise or defend, except at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Claim. The Indemnifying - 41 - [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as provided amended. Party will promptly (and in any event not more than [*] after receipt of the immediately following sentence Indemnitee’s original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Claim pursuant to this Article 11 (Indemnification; Insurance) and of its intention either to compromise or defend such Claim. Once the last sentence of this paragraphIndemnifying Party gives such notice to the Indemnitee, assume (a) the Indemnifying Party will have the right to control the defense and settlement of such Claim, with counsel reasonably satisfactory subject to this Section 11.3 (Indemnification Procedures) and (b) the Indemnifying Party is not liable to the indemnified Party to represent the indemnified Party in such proceeding and shall pay Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee’s reasonable expenses of investigation and disbursements of such counsel related cooperation. Any Indemnitee will be entitled to such proceeding. In any such proceedingparticipate in, any indemnified Party shall have the right to retain its own counsel and participate in but not control, the defense of any Claim and to retain counsel of its choice for such Claim, but the fees and expense of purpose; provided that such counsel shall retention will be at the Indemnitee’s own cost and expense of such indemnified Party unless: unless (i) the indemnifying Indemnifying Party has failed to assume the defense and retain counsel in accordance with this Section 11.3.2 (Defense) (in which case the indemnified Party shall have mutually agreed to will control the retention of such counsel; defense at the Indemnifying Party’s cost and expense), or (ii) the named Parties to any such proceeding (including any impleaded parties) include both interests of the indemnifying Party Indemnitee and the indemnified Indemnifying Party and with respect to such Claim are sufficiently adverse to prohibit the representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall notof both Parties under any legal requirement, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Partyethical rules, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4equitable principles.
Appears in 1 contract
Defense. An indemnifying If the facts pertaining to a Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party shallwithin twenty (20) days following its receipt of the notice of such claim, except as provided elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants at its cost and expense; provided, however, that the Indemnity Obligor may assume the defense or prosecution thereof only if (i) it provides evidence reasonably acceptable to the Indemnified Party that it will have the financial resources to defend the claim and satisfy its indemnification obligations; (ii) it obtains counsel which is reasonably satisfactory to the Indemnified Party; (iii) the third party claim involves only money damages and does not seek an injunction or other equitable relief; (iv) it conducts the defense of the claim actively and diligently; and (v) it keeps the Indemnified Party informed of all material developments and events relating thereto. Notwithstanding the foregoing, for the avoidance of doubt, the Indemnity Obligor shall have no obligation to defend any claim of any third party alleging that any Current Customer Deliverable infringes any Intellectual Property of a third party to the extent the Plaintiff or Counterclaim-Plaintiff does not specifically allege in writing that the immediately following sentence and Current Customer Deliverables infringe such Intellectual Property (even if the last sentence of this paragraph, Indemnity Obligor has previously elected to assume the defense of such Claimclaim, with counsel reasonably satisfactory provided that if the Indemnity Obligor elects to discontinue its defense of any such claim pursuant to this sentence, the Indemnity Obligor must provide prompt notice to the indemnified Party Indemnified Parties of its election to represent discontinue the indemnified Party in such proceeding and shall pay the fees and disbursements defense of such counsel related to such proceedingclaim). In any such proceeding, any indemnified The Indemnified Party shall have the right to retain its own employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in the defense of such Claimtherein, but the fees and expense expenses of such counsel shall be at the expense of Indemnified Party’s own expense. Whether or not the Indemnity Obligor chooses so to defend or prosecute such indemnified Party unless: (i) claim, all the indemnifying Party parties hereto shall cooperate in the defense or prosecution thereof and the indemnified Party shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. The Indemnity Obligor shall have mutually agreed the right to the retention of settle, adjust or compromise such counselclaim; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed provided, however, that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Indemnified Party shall not be liable or obligated for any settlement such settlement, adjustment or compromise of any proceeding such claim effected without its prior written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4.
Appears in 1 contract
Defense. An indemnifying The Indemnifying Party shall, except as provided in the immediately following sentence and the last sentence of this paragraph, shall be entitled to assume the defense and control of any action giving rise to an Indemnified Party's claim for indemnification under Article XI unless (x) the Indemnified Party reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification is likely to be materially detrimental to or materially injure the Indemnified Party's future business prospects or (y) the claim seeks an injunction or equitable relief against the Indemnified Party that is likely to have a material adverse effect on the business of the Indemnified Party, taken as a whole. If the Indemnifying Party assumes the defense of any Indemnifiable Claim, with it shall retain experienced counsel reasonably satisfactory to the indemnified Indemnified Party to represent and the indemnified Indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and may participate in the defense of such Claim, but the fees claim and expense employ counsel of its choice for such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counselpurpose; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed provided that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more such separate counsel shall be borne by the Indemnified Party (other than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assumes control of such defense). If the Indemnifying Party does not assume such defense, the Indemnified Party may compromise or settle the claim on behalf of and for the account and risk of the Indemnifying Party, who shall be reimbursed as they are incurred. The indemnifying bound by the result; provided, however, that the Indemnifying Party (i) shall be responsible only for the reasonable costs of defense and (ii) shall be entitled to participate (at its cost and with counsel of its choice) in the defense of any Action in which the Indemnified Party retained the defense thereof under clause (x) or (y) of the first sentence of this Section 11.3(b); and provided further, that the Indemnifying Party shall not be liable for any settlement or compromise of any proceeding such Action of which the Indemnified Party has retained the defense, that is effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of (which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may consent shall not be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4withheld unreasonably).
Appears in 1 contract
Defense. An indemnifying Party shallWith respect to any Proceeding as to which Indemnitee notifies Covidien plc and Covidien Ltd. of the commencement thereof, Covidien plc will be entitled to participate in the Proceeding at its own expense and except as otherwise provided in below, to the immediately following sentence and the last sentence of this paragraphextent Covidien plc so wishes, it may assume the defense of such Claim, thereof with counsel reasonably satisfactory to Indemnitee. After notice from Covidien plc to Indemnitee of its election to assume the indemnified Party defense of any Proceeding, Covidien plc shall not be liable to represent Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the indemnified Party in such proceeding and shall pay the fees and disbursements defense of such counsel related to such proceedingProceeding other than reasonable costs of investigation or as otherwise provided below. In any such proceeding, any indemnified Party Indemnitee shall have the right to retain employ legal counsel in such Proceeding, but all Expenses related thereto incurred after notice from Covidien plc of its own counsel and participate in assumption of the defense of such Claim, but the fees and expense of such counsel shall be at the Indemnitee’s expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention employment of such counsel; or legal counsel by Indemnitee has been authorized by Covidien plc, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and Covidien plc in the named Parties to any such proceeding defense of the Proceeding, (including any impleaded partiesiii) include both after a Change in Control, the indemnifying Party and the indemnified Party and representation employment of both Parties counsel by Indemnitee has been approved by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified PartyIndependent Counsel, or (yiv) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right Covidien plc shall not in fact have employed counsel to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; Proceeding, in each of which cases all Expenses of the Proceeding shall be borne by Covidien plc. Covidien plc shall not be entitled to assume the defense of any Proceeding (x) brought by or on behalf of Covidien Ltd. or Covidien plc, (y) as to which Indemnitee shall have made the determination provided for in (ii) above or (3z) after a Change in case Control (it being specified, for the avoidance of Customerdoubt, pursuant to that Covidien plc may assume defense of any such proceeding described in this sentence with Indemnitee’s consent, provided that any such consent shall not affect the rights of Indemnitee under the foregoing provisions of this Section 20.46(b)).
Appears in 1 contract
Samples: Covidien PLC
Defense. An indemnifying Party shallWith respect to any Proceeding as to which Indemnitee notifies the Company of the commencement thereof, the Company or any Subsidiary designated by the Company and that has legal standing to participate in such Proceeding will be entitled to participate in the Proceeding at its own expense and except as otherwise provided below, to the extent the Company or such Subsidiary so wishes, it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. After notice from the Company or such Subsidiary to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ his own counsel in such Proceeding, but all Expenses related thereto incurred after notice from the Company or such Subsidiary of its assumption of the defense shall be at Indemnitee's expense unless: (i) the employment of counsel by Indemnitee has been authorized by the Company or such Subsidiary, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company or such Subsidiary in the immediately following sentence and defense of the last sentence Proceeding, (iii) after a Change in Control of this paragraphthe Company or a Change in Control of a Subsidiary, or (iv) neither the Company nor such Subsidiary shall within sixty (60) calendar days (or such shorter period of time as may be necessary to preserve any rights or defenses) in fact have employed counsel to assume the defense of such ClaimProceeding, with in each of which cases in clauses (i) through (iv) all Expenses of the Proceeding shall be borne by the Company; and (v) if the Company or such Subsidiary has employed counsel reasonably satisfactory to the indemnified Party to represent Indemnitee and other current and former directors, officers and employees of the indemnified Party in Company or such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate Subsidiary in the defense of a Proceeding, and a majority of such Claimpersons, but including Indemnitee, reasonably object to such counsel selected by the Company or such Subsidiary pursuant to this Section 6(a), then such persons, including Indemnitee, shall be permitted to employ one (1) additional counsel of their choice and the reasonable fees and expense expenses of such counsel shall be at the expense of the Company; provided, however, that such indemnified Party unless: (i) counsel shall be chosen from amongst the indemnifying Party list of counsel, if applicable, approved by any company with which the Company or such Subsidiary obtains or maintains directors' and officers' liability insurance, if required by the indemnified Party terms of such insurance. In the event separate counsel is retained by an Indemnitee pursuant to this Section 6(a), the Company shall have mutually agreed and shall cause such Subsidiary, if applicable, to cooperate fully with Indemnitee with respect to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect defense of the legal expense of any indemnified Party in connection with any proceeding Proceeding, including making documents, witnesses and other reasonable information related to the defense available to Indemnitee and such separate counsel pursuant to joint-defense agreements or related proceedings in confidentiality agreements, as appropriate. Neither the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Company nor such indemnified Parties and that all such fees and expenses Subsidiary shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees entitled to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: Proceeding brought by or on behalf of the Company or such Subsidiary, as to which Indemnitee shall have made the determination provided for in clause (1ii) if it irrevocably waives its right above or as to indemnity under this Section 20, or (2) if, without prejudice which the Indemnitee elects to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense after the occurrence of such Claim; or either of the events described in clause (3iii) in case of Customer, pursuant to Section 20.4above.
Appears in 1 contract
Samples: Indemnification Agreement (First Midwest Bancorp Inc)
Defense. An indemnifying If a third‑party action, suit, claim or demand (a “Third Party shallClaim”) is involved, except as provided in then, upon receipt of the immediately following sentence Indemnification Notice, the Indemnitor shall have fifteen (15) calendar days after said notice is given to elect, by written notice given to the Indemnitee, to undertake, conduct and control, through counsel of its own choosing which is reasonably acceptable to the last sentence of this paragraphIndemnitee and at its sole risk and expense, assume the good faith settlement or defense of such Claimclaim, and the Indemnitee shall cooperate with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party Indemnitor in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in the defense of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unlessconnection therewith; provided: (ia) all settlements require the indemnifying Party prior reasonable consultation with the Indemnitee and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified PartyIndemnitee, effect which consent shall not be unreasonably withheld, provided that the Indemnitor may settle any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than claim without the payment of money, (B) involves any finding or admission of any violation of any Law or any prior consent of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) Indemnitee if such settlement involves only the payment of money, unless it includes an unconditional full release of the Indemnitee and the Indemnitor agrees to pay all amounts payable pursuant to such indemnified Party of all liability on claims that are settlement, and (b) the subject Indemnitee shall be entitled to participate in such settlement or defense through counsel chosen by the Indemnitee (the fees and expenses of such proceedingcounsel shall be borne by the Indemnitee). An indemnified Party may assume control So long as the Indemnitor is contesting any such claim in good faith, the Indemnitee shall not pay or settle any such claim; provided, however, that notwithstanding the foregoing, the Indemnitee shall have the right to pay or settle any such claim at any time; provided, that in such event, the Indemnitee shall waive any right of indemnification therefor by the Indemnitor. If the Indemnitor does not make a timely election to undertake the good faith defense or settlement of the claim as aforesaid, or if the Indemnitor fails to proceed with the good faith defense or settlement of any Claim: (1) if it irrevocably waives the matter after making such election, then, in either such event, the Indemnitee shall have the right to contest, settle or compromise the claim at its exclusive discretion, retaining its right to indemnity under this Section 20seek indemnification from Indemnitor. In addition, or if an Indemnitee (2a) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Third Party Claim would may materially and adversely affect it or any other indemnitees of its Affiliates other than as a result of monetary damages that for which it would be fully reimbursed by an indemnifying Party entitled to indemnification under the this Agreement, or (ccb) in the indemnifying Party refuses or fails to timely assume the defense good faith opinion of counsel of such party concludes that there are defenses available to it that may be unavailable to, or inconsistent with or contrary to the interests of the Indemnitor, the Indemnitee may, by notice to the Indemnitor, retain the exclusive right to defend, compromise or settle such Third Party Claim; , retaining its right to seek indemnification from Indemnitor. In any event, the Indemnitor and the Indemnitee shall fully cooperate with each other in connection with the defense, including by furnishing all available documentary or (3) in case of Customer, pursuant to Section 20.4other evidence as is reasonably requested by the other party.
Appears in 1 contract
Samples: Stock Purchase Agreement (IHS Inc.)
Defense. An indemnifying If any claim, demand or liability is asserted by any third party against any Indemnified Party, the Indemnifying Party shallshall be entitled to participate therein and defend any action or proceeding brought against the Indemnified Party in respect of matters embraced by the indemnity, except as provided in the immediately following sentence and the last sentence of this paragraph, assume the defense of such Claim, with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Indemnifying Party shall have the right to retain conduct and control the defense subject to the Indemnified Party's approval in writing of outside counsel selected by the Indemnifying Party. After notice from the Indemnifying Party to the Indemnified Party of its own counsel and participate in election to assume the defense of such Claimclaim or action, but the fees and Indemnifying Party shall not be liable to the Indemnified Party under this Section 10 for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. In any action defended by the Indemnifying Party the Indemnified Party shall have the right to be represented by its own counsel at its own expense unless (1) the employment of such counsel shall be at have been authorized in writing by the expense Indemnifying Party or (2) the Indemnifying Party shall not have properly employed counsel reasonably satisfactory to such Indemnified Party to have charge of the defense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention action; in each of such counsel; or (ii) cases such fees and expenses shall be paid by the Indemnifying Party. In addition, if the named Parties parties to any such action, suit or proceeding (including any impleaded parties) shall include both the indemnifying such Indemnified Party and Indemnifying Party, and such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to it which are different from, or additional to, those available to the indemnified Indemnifying Party, and if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnified Party, and representation the Indemnified Party may participate in the defense of both Parties such action, suit or proceeding and such fees and expenses shall be paid by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed Indemnifying Party; it being understood, however, that the indemnifying Indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding one such action or separate but substantially similar or related proceedings actions in the same jurisdictionjurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) counsel for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurredIndemnified Parties). The indemnifying Indemnifying Party shall not be liable for any settlement of any proceeding effected will not, without its Indemnified Party's written consent, but if settled with such settle or compromise any indemnifiable claim or consent or if there is a final judgment for to the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement entry of any pending or threatened proceeding judgment in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if thereof unless such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding compromise or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it consent includes an unconditional release of such indemnified the Indemnified Party of from all liability on claims that are the subject in respect of such proceedingIndemnifiable Claim. An indemnified Party may assume control of The parties shall cooperate in the defense of any Claim: (1) if it irrevocably waives its right all third party claims which may give rise to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4Indemnifiable Claims hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cinergi Pictures Entertainment Inc)
Defense. An If any claim, demand, or liability is asserted by any third party against an indemnified party, the indemnifying party shall upon written request of the Indemnified Party, defend any actions or proceedings brought against the Indemnified Party shallin respect of matters embraced by the indemnity, except as provided in the immediately following sentence and the last sentence of this paragraph, assume the defense of such Claim, with counsel reasonably satisfactory to but the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party party shall have the right to retain conduct and control the defense, compromise or settlement of any Indemnifiable Claim if the Indemnified Party chooses to do so, on behalf of and for the account and risk of the Indemnifying Party who shall be bound by the result so obtained to the extent provided herein. If after a request to defend any action or proceeding, the Indemnifying Party neglects to defend the Indemnified Party, a recovery against the latter suffered by it in good faith, is conclusive in its own counsel and participate favor against the Indemnifying Party, provided however that, if the Indemnifying Party has not received reasonable notice of the action or proceeding against Indemnified Party, or is not allowed to control its defense, judgment against the Indemnified Party is only presumptive evidence against the Indemnifying Party. Each Party hereto to the extent that it is or becomes an Indemnifying Party, hereby stipulates that a judgment again an Indemnified Party shall be conclusive against the Indemnifying Party for purposes of the indemnification, unless specified otherwise above, the Parties shall cooperate in the defense of such Claimall third party claims, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed which may give rise to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between themindemnifiable claims hereunder. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in In connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20claim, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance each party shall make available to the indemnified Party of party controlling such defense, any books, records or other documents within its financial capacity to defend or provide indemnification with respect to such Claim, (bb) control that are reasonably requested in the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense course of such Claim; defense and necessary or (3) in case of Customer, pursuant to Section 20.4appropriate for such defense.
Appears in 1 contract
Defense. An indemnifying If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor shall, except as provided in by giving written notice to the immediately Indemnified Party within 15 days following sentence and its receipt of the last sentence notice of this paragraphsuch claim, assume the defense or the prosecution thereof, including the employment of such Claimcounsel or accountants, with counsel reasonably satisfactory to the indemnified Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to represent take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceedingLoss. In any such proceeding, any indemnified The Indemnified Party shall have the right to retain its own employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in the defense of such Claimtherein, but the fees and expense expenses of such counsel shall be at the expense of such indemnified Party unless: Indemnified Party's own expense, unless (ia) the indemnifying employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and counsel to each of the Indemnified Party and the indemnified Party Indemnity Obligor shall have mutually agreed to the retention of advised such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and parties that representation of both Parties parties by the same counsel would be inappropriate due to actual or potential differing interests between themthem or (c) the Indemnity Obligor has failed to assume the defense of such action. It is agreed that Whether or not the indemnifying Party Indemnity Obligor defends or prosecutes such claim, all the parties hereto shall notcooperate in the defense or prosecution thereof and shall furnish such records, in respect of the legal expense of any indemnified Party information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurredtherewith. The indemnifying Party Indemnity Obligor shall not be liable for any settlement of any proceeding such claim effected without its prior written consent, but if settled . In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with such consent or if there is any Loss arising out of a final judgment for the plaintiffThird Party Claim, the indemnifying Party agrees Indemnity Obligor shall be subrogated to indemnify and shall stand in the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent place of the indemnified Party, effect Indemnified Party as to any settlement of any pending events or threatened proceeding circumstances in respect of which the Indemnified Party may have any indemnified Party is right or could have been a claim against such third party and indemnity could have been sought hereunder by relating to such indemnified Party: (x) if such settlement; (A) involves matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any form of relief other than subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the payment of money, (B) involves any finding or admission of any violation of any Law or any Indemnified Party without the consent of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4.
Appears in 1 contract
Samples: I-Level Media Group Inc
Defense. An indemnifying Party shallWith respect to any Proceeding as to which Indemnitee notifies the Company of the commencement thereof, the Company or any Subsidiary designated by the Company and that has legal standing to participate in such Proceeding will be entitled to participate in the Proceeding at its own expense and except as otherwise provided below, to the extent the Company or such Subsidiary so wishes, it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. After notice from the Company or such Subsidiary to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but all Expenses related thereto incurred after notice from the Company or such Subsidiary of its assumption of the defense shall be at Indemnitee’s expense unless: (i) the employment of counsel by Indemnitee has been authorized by the Company or such Subsidiary, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company or such Subsidiary in the immediately following sentence and defense of the last sentence Proceeding, (iii) after a Change in Control of this paragraphthe Company, or (iv) neither the Company nor such Subsidiary shall within sixty (60) calendar days (or such shorter period of time as may be necessary to preserve any rights or defenses) in fact have employed counsel to assume the defense of such ClaimProceeding, with in each of which cases in clauses (i) through (iv) all Expenses of the Proceeding shall be borne by the Company; and (v) if the Company or such Subsidiary has employed counsel reasonably satisfactory to the indemnified Party to represent Indemnitee and other current and former directors, officers and employees of the indemnified Party in Company or such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate Subsidiary in the defense of a Proceeding, and a majority of such Claimpersons, but including Indemnitee, reasonably object to such counsel selected by the Company or such Subsidiary pursuant to this Section 6(a), then such persons, including Indemnitee, shall be permitted to employ one (1) additional counsel of their choice and the reasonable fees and expense expenses of such counsel shall be at the expense of the Company; provided, however, that such indemnified Party unless: (i) counsel shall be chosen from amongst the indemnifying Party list of counsel, if applicable, approved by any company with which the Company or such Subsidiary obtains or maintains directors’ and officers’ liability insurance, if required by the indemnified Party terms of such insurance. In the event separate counsel is retained by an Indemnitee pursuant to this Section 6(a), the Company shall have mutually agreed and shall cause such Subsidiary, if applicable, to cooperate fully with Indemnitee with respect to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect defense of the legal expense of any indemnified Party in connection with any proceeding Proceeding, including making documents, witnesses and other reasonable information related to the defense available to Indemnitee and such separate counsel pursuant to joint-defense agreements or related proceedings in confidentiality agreements, as appropriate. Neither the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Company nor such indemnified Parties and that all such fees and expenses Subsidiary shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees entitled to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: Proceeding brought by or on behalf of the Company or such Subsidiary, as to which Indemnitee shall have made the determination provided for in clause (1ii) if it irrevocably waives its right above or as to indemnity under this Section 20, or (2) if, without prejudice which the Indemnitee elects to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense after the occurrence of such Claim; or either of the events described in clause (3iii) in case of Customer, pursuant to Section 20.4above.
Appears in 1 contract
Samples: Indemnification Agreement (First Midwest Bancorp Inc)
Defense. An indemnifying If the facts relating to a Loss arise out a Third Party shallClaim, except as provided in or if there is any claim against a third party available by virtue of the immediately circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following sentence and its receipt of the last sentence notice of this paragraphsuch claim, elect to assume the defense or the prosecution thereof, including the employment of such Claimcounsel or accountants, with counsel reasonably satisfactory to the indemnified Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to represent take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceedingLoss. In any such proceeding, any indemnified The Indemnified Party shall have the right to retain its own employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in the defense of such Claimtherein, but the fees and expense expenses of such counsel shall be at the expense Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such indemnified counsel it is advisable for such Indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such employ separate counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aac) the indemnifying Party fails Indemnity Obligor has failed to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or (3) in case of Customer, pursuant to Section 20.4.not the Indemnity Obligor
Appears in 1 contract
Defense. An indemnifying Upon demand by any Indemnified Party, Xxxxxxxx will defend any investigation, action or proceeding involving any Indemnified Costs that is brought against any Indemnified Party, whether alone or together with Borrower or any other person or entity, all at Borrower’s own cost and by counsel to be approved by the Indemnified Party. In connection therewith, Xxxxxxxx will pay for the cost and expense of any counsel hired or engaged by an Indemnified Party shall, except as provided in the immediately following sentence and the last sentence of this paragraph, assume the to protect its interest and/or to oversee any defense of such Claim, with counsel reasonably satisfactory to the indemnified Indemnified Party to represent the indemnified Party in such proceeding by Xxxxxxxx and shall pay the fees and disbursements of such counsel related to such proceedingits counsel. In any such proceeding, any indemnified Each Indemnified Party shall have the right to retain its own employ separate counsel in any such action or proceeding and participate in the investigation and defense thereof, and Borrower shall pay the reasonable fees and expenses of such Claimseparate counsel; provided, but the fees and expense of however, that such Indemnified Party may only employ separate counsel shall be at the expense of Borrower if in the judgment of such indemnified Indemnified Party unless: a conflict of interest exists or could arise by reason of common representation or if all parties commonly represented do not agree as to the action (ior inaction) of counsel. Xxxxxxxx will not settle or compromise a claim asserted against an Indemnified Party without the indemnifying approval of that Indemnified Party. In the event that any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought hereunder, Xxxxxxxx, upon written notice from the Indemnified Party, shall assume the investigation and defense thereof, including the indemnified employment of counsel acceptable to the Indemnified Party, and shall assume the payment of all expenses related thereto, with full power to litigate, compromise or settle the same in its sole discretion; provided that the Indemnified Party shall have mutually agreed the right to the retention of such counsel; review and approve or (ii) the named Parties to disapprove any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual compromise or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4.
Appears in 1 contract
Samples: Loan Agreement
Defense. An indemnifying If the facts relating to a Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party shallwithin 15 days following its receipt of the notice of such claim, except as provided in the immediately following sentence and the last sentence of this paragraph, elect to assume the defense or the prosecution thereof, including the employment of such Claimcounsel or accountants at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its commercially reasonable efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with counsel reasonably satisfactory respect to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceedingLoss. In any such proceeding, any indemnified The Indemnified Party shall have the right to retain its own employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in the defense of such Claimtherein, but the fees and expense expenses of such counsel shall be at the expense of such indemnified Party unless: Indemnified Party's own expense, unless (i) the indemnifying Party and employment thereof has been specifically authorized by the indemnified Party shall have mutually agreed to the retention of such counsel; or Indemnity Obligor, (ii) such Indemnified Party has been advised by counsel reasonably satisfactory to the named Parties Indemnity Obligor that there may be one or more legal defenses available to any it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such proceeding counsel it is advisable for such Indemnified Party to employ separate counsel, or (including any impleaded partiesiii) include both the indemnifying Party Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified Party Indemnified Party. Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and representation of both Parties by the same counsel would shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party reasonably requested in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurredtherewith. The indemnifying Party Indemnity Obligor shall not be liable for any settlement of any proceeding such claim effected without its prior written consent, but if settled . In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with such consent or if there is any Loss arising out of a final judgment for the plaintiffthird party claim, the indemnifying Party agrees Indemnity Obligor shall be subrogated to indemnify and shall stand in the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent place of the indemnified Party, effect Indemnified Party as to any settlement of any pending events or threatened proceeding circumstances in respect of which the Indemnified Party may have any indemnified right or claim against such third party relating to such Loss. The Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves shall cooperate with the Indemnity Obligor in prosecuting any form of relief other than subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the payment of money, (B) involves any finding or admission of any violation of any Law or any Indemnified Party without the consent of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4.
Appears in 1 contract
Defense. An indemnifying Party shallPromptly after receipt by an Indemnified Person of notice of the commencement of any action or proceeding with respect to which indemnification may be sought hereunder, except as provided in such person shall notify the immediately following sentence and Indemnitor of the last sentence commencement of this paragraphsuch action or proceeding, but failure so to notify the Indemnitor shall not relieve the Indemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be materially prejudiced by such failure. If the Indemnitor shall so elect, the Indemnitor shall assume the defense of such Claimaction or proceeding, with including the employment of counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding Indemnified Person and shall pay the fees and disbursements of such counsel. In the event, however, that such Indemnified Person reasonably shall determine in its judgment that having com- mon counsel related would present such counsel with a conflict of interest or alternative defenses shall be available to an Indemnified Person or if the Indemnitor shall fail to assume the defense of the action or proceeding in a timely manner, then such Indemnified Person may employ separate counsel to represent or defend it in any such action or proceeding, and the Indemnitor shall pay the reasonable fees and dis- bursements of such counsel; provided, however, that the Indemnitor shall not be required to pay the fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single action or proceeding. In any such proceedingaction or proceeding the defense of which the Indemnitor shall assume, any indemnified Party the Indemnified Person shall have the right to participate in such litigation and to retain its own counsel and participate in at such Indemnified Person's own expense, so long as such participation shall not interfere with the defense Indemnitor's control of such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4litigation.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Phoenix Information Systems Corp)
