SEC Filings
SC 13D/A | |
GLAZER MALCOLM I filed this Form SC 13D/A on 09/18/2006 | |
Entire Document |
<< Previous Page | Next Page >> | |
Table of Contents
of all available material written
evidence thereof and will indicate the estimated amount, if reasonably estimable, of the Damages
that have been or may be sustained by the Indemnified Party. The Indemnifying Party will have the
right to participate in, or, by giving written notice to the Indemnified Party, to assume, the
defense of any Third-Party Claim at such Indemnifying Partys own expense and by such Indemnifying
Partys own counsel (which will be reasonably satisfactory to the Indemnified Party), and the
Indemnified Party will cooperate in good faith in such defense.
(b) Any Indemnifying Party will have the right to defend the Indemnified Party against any
third party claim for which it is entitled to indemnification from such Indemnifying Party under
this Article 11 with counsel reasonably satisfactory to the Indemnified Party so long as (i) the
Indemnifying Parties notifies the Indemnified Party in writing within 15 days after the Indemnified
Party has given notice of the Third Party Claim that all of the Indemnifying Parties will indemnify
the Indemnified Party from and against the entirety of Damages the Indemnified Party may suffer
resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim
to the extent provided in Section 11.2, (ii) the Indemnifying Parties provides the Indemnified
Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Parties
will have the financial resources to defend against the Third Party Claim and fulfill their
indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and
does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment
with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party,
likely to establish a precedential custom or practice materially adverse to the continuing business
interests of the Indemnified Party, and (v) the Indemnifying Parties diligently conducts the
defense of the Third Party Claim.
So long as the Indemnifying Party has undertaken to conduct the defense of the Third Party
Claim in accordance with the foregoing Section 11.3(b), (i) the Indemnified Party may retain
separate co-counsel at its sole cost and expense and participate in the defense of the Third Party
Claim, (ii) the Indemnified Party will not consent to the entry of any judgment or enter into any
settlement with respect to the Third Party Claim without the prior written consent of the
Indemnifying Party, and (iii) the Indemnifying Party shall keep the Indemnified Party informed as
to the status of the claim for which it is providing a defense. Notwithstanding anything to the
contrary herein, in the event that (w) any of the conditions in this Section 11.3(b) is or becomes
unsatisfied; (x) the Indemnifying Party shall not have employed counsel reasonably satisfactory to
the Indemnified Party to defend such action within thirty (30) days after the Indemnifying Party received notice of the Third Party Claim; (y) the Indemnified Party
shall have reasonably concluded, based upon written advice of counsel, that it has defenses
available to it that are different from or additional to those available to the Indemnifying Party
(in which case the Indemnifying Party shall not have the right to direct the defense of such action
on behalf of the Indemnified Party with respect to such different defenses); or (z) representation
of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate
due to actual or potential differing interests between such Indemnified Party and any other party
represented by such counsel in such proceeding, then the Indemnified Party may defend against, and
consent to the entry of any judgment or enter into any settlement with respect to, the Third Party
Claim in any manner it may deem appropriate (and the Indemnified Party need not consult with, or
obtain any consent from, any Indemnifying Party in connection therewith) and, the Indemnifying
Parties will be responsible for the Indemnified Partys costs of
29
| |
<< Previous Page | Next Page >> |