|ENVISION HEALTHCARE CORP filed this Form 8-K on 08/10/2017|
computation of the amount of such claim, and a reference to the provision of this Agreement upon which such claim is based, of the Third-Party Claim, but any failure to so notify the Indemnifying Party shall not relieve it from any Liability that it may have to the Indemnitee under Section 10.3(a) and Section 10.3(b), except to the extent that the Indemnifying Party is materially and adversely prejudiced by the failure to timely give such notice. Thereafter, the Indemnitee shall promptly deliver to the Indemnifying Party copies of all notices and documents (including court papers) received by Indemnitee relating to the Third-Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been materially and adversely prejudiced as a result of such failure.
(d) If a Third-Party Claim is made against an Indemnitee, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses by giving written notice to the Indemnitee within thirty (30) days of the receipt of notice of the Third-Party Claim, to assume and control the defense thereof with counsel selected by the Indemnifying Party; provided that such counsel is not objected to by the Indemnitee in its reasonable discretion. Should the Indemnifying Party so elect to assume the defense of a Third-Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof (except in the case of a conflict of interest as set forth in Section 10.3(e)). If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. So long as the Indemnifying Party is diligently defending any such claim, the Indemnitee shall not pay or settle any such claim without the written consent of the Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party shall be liable for the reasonable fees and expenses of outside counsel engaged by the Indemnitee for any period during which the Indemnifying Party is not assuming the defense thereof or at any time as set forth in Section 10.3(e) below.
(e) Notwithstanding anything contained in Section 10.3(d) to the contrary, the Indemnifying Party shall not be entitled to assume and control any Third-Party Claim if:
(i) the Indemnifying Party does not diligently defend such proceeding; or
(ii) there exists, in the Indemnitees reasonable and good faith judgment, based on the advice of outside legal counsel, a conflict of interest between the Indemnitee and the Indemnifying Party which, under applicable principles of legal ethics, could reasonably be expected to prohibit a single legal counsel from representing both the Indemnitee and the Indemnifying Party in such proceeding.
(f) Without the prior written consent of the Indemnitee (which shall not be unreasonably withheld, delayed or conditioned), the Indemnifying Party will not settle or compromise any Third-Party Claim or consent to the entry of any judgment, if such settlement, compromise or judgment (i) would result in any remedy other than the payment of money for which the Indemnitee is fully indemnified by the Indemnifying Party or if payment