Claim Procedure. (i) If an Indemnified Person shall have any claim against Forte and/or the Forte Shareholders pursuant to this Agreement for which it seeks remedy under this Article VII, it shall promptly give written notice thereof to the Holders' Agent and the Escrow Agent including in such notice a brief description of the facts upon which such claim is based and, to the extent known, the amount thereof; provided, that the failure to promptly give any such notice in accordance with -------- the terms specified in this Agreement shall not affect the Indemnified Person's right to obtain indemnity therefor to the extent that such failure does not materially prejudice Forte; and, provided, that, in each case, notice of such -------- claim shall have been given before the date provided in Section 7.1(a). If, after the amount of the claim is specified by the Indemnified Person, the Holders' Agent objects to any such claim, it may give written notice to the Indemnified Person and the Escrow Agent within thirty (30) days of the later of receipt of the Indemnified Person's notice of claim or the specification by the Indemnified Person of the amount of the claim, advising the Indemnified Person of its objection. If no such notice is timely received from the Holders' Agent by the Indemnified Person, the Indemnified Person will be entitled to payment from the Escrow Funds pursuant to Section 7.2, in the amount of the Loss arising out of the claim specified in its notice of claim. If the Holders' Agent advises the Indemnified Person within such thirty-day period that it objects to such claim, the Indemnified Person and the Holders' Agent shall promptly meet and use their best efforts to settle the dispute in writing. If the Indemnified Person and the Holders' Agent are unable to reach agreement within thirty days after the Holders' Agent objects to the claim, then the disputed portion of the claim shall be submitted to arbitration in accordance with Section 10.9. If the Arbitrator shall determine that the Indemnified Person is entitled to indemnification with respect to the dispute submitted, the Indemnified Person will be entitled to obtain payment from the Escrow Funds pursuant to Section 7, in the amount determined by the arbitrator. (ii) If a claim by a third party is made against an Indemnified Person for which the Indemnified Person is entitled to indemnification under this Article VII, the Indemnified Person shall promptly notify the Holders' Agent in writing of such claim. Such notice shall set forth such information with respect to such claim as is then available to the Indemnified Person, including the liability asserted in the claim or the Indemnified Person's good faith estimate thereof. In the event the liability asserted in such claim, or reasonably estimated by an Indemnified Person with respect thereto, shall not exceed the then existing balance of the Escrow Funds, then the Holders' Agent shall have the lesser of (x) twenty (20) days after the receipt of such notice, or (y) the period ending five (5) days before a responsive pleading is required, to undertake to conduct and control, through counsel of its own choosing, and at its sole risk and expense, the good faith settlement and/or defense of such claim, and the Indemnified Person shall cooperate fully with the Holders' Agent in connection therewith; provided: (a) the Indemnified Person shall be entitled -------- to participate in such settlement or defense through counsel of its own choosing, provided that the fees and expense of such counsel shall be fully borne by the Indemnified Person, and (b) the Holders' Agent shall have, within such aforementioned period, notified the Indemnified Person in writing of its election to undertake the settlement or defense and confirmed in writing the obligation of Forte to indemnify the Indemnitee for the liability asserted in such claim. The Holders' Agent shall obtain the written consent of the Indemnified Person, which consent shall not be unreasonably withheld, before the Holder's Agent ceases to defend, settle or otherwise dispose of such claim if, as a result thereof, the Indemnified Person would become subject to injunctive or other equitable relief or the business of the Indemnified Person would be materially adversely affected in any manner. So long as the Holders' Agent is reasonably contesting any such claim in good faith, the Indemnified Person shall fully cooperate with the Holders' Agent in the defense or settlement of such claim as is reasonably required by the Holders' Agent, and the Indemnified Person shall not pay or settle such claim without the consent of the Holders' Agent; provided, however, that -------- ------- notwithstanding the foregoing, the Indemnified Person shall have the right to pay or settle any such claim at any time without the consent of the Holders' Agent if, and only if, in such event, the Indemnified Person shall have waived in writing any right to indemnification therefor. If the Holders' Agent does not give the Indemnified Person the timely written notice of the undertaking referred to in clause (b) of this subsection (ii) the Indemnified Person shall thereafter have the right to contest, defend, settle or compromise the claim at its exclusive discretion, and may recover its Losses as otherwise provided in this Article VII. (iii) For purposes of this Article VII, any Loss shall be computed net of any insurance proceeds with respect thereto which reduced the Loss that would otherwise be sustained; provided, however, that in all cases, -------- ------- the timing of the receipt or realization of insurance proceeds shall be taken into account in determining the amount of reduction of the Loss. In any case where an indemnifiable claim is made and the Surviving Corporation (i) receives a tax benefit (such as a deduction or credit) in the tax year or years following the Effective Time of the Merger as a result of the adjustment or adjustments giving rise to the tax claim, and/or (ii) an Indemnified Person receives tax benefits applicable to the period prior to the Effective Time of the Merger which either arise from the adjustment or adjustments giving rise to such claim, or which were not carried on Forte's books as an asset on the Effective Time of the Merger, then the amount of any such claim shall be reduced by the amount of such tax benefits; provided, however, that, in all cases, the timing of the -------- ------- ---- receipt or realization arising from the tax adjustment or adjustments and the tax benefits received shall be taken into account in determining the amount of reduction of the Loss.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Genesys Telecommunications Laboratories Inc)
Claim Procedure. (a) The Indemnified Parties will give written notice (a "Claim Notice") to the Sellers containing (i) If an a description and, if known, the estimated amount of any Losses incurred or reasonably expected to be incurred by the Indemnified Person shall have any claim against Forte and/or Parties, and (ii) a reasonable explanation of the Forte Shareholders pursuant to this Agreement basis for which it seeks remedy under this Article VII, it shall promptly give written notice thereof the Claim Notice to the Holders' Agent and the Escrow Agent including in such notice a brief description extent of the facts upon which such claim is based andthen known. The Claim Notice must be delivered in accordance with Section 10.1 hereto.
(b) Within 30 days after delivery of a Claim Notice, the Sellers will deliver to the extent knownIndemnified Parties a written response to such Claim Notice. If the Sellers fail to so respond within 30 Days after delivery of the Claim Notice, then the Sellers will be deemed to have irrevocably accepted the Claim Notice and agreed to pay the Losses at issue in the Claim Notice. CHIDMS1/2982920.1 [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(c) If, within 30 days after delivery of the Claim Notice, the amount thereof; provided, that the failure to promptly give any such Sellers deliver a written notice in accordance with -------- the terms specified in this Agreement shall not affect Section 10.1 hereof disputing the Indemnified Person's right Parties’ entitlement to obtain indemnity therefor to indemnification for the extent that such failure does not materially prejudice Forte; and, provided, that, in each case, notice of such -------- claim shall have been given before the date provided in Section 7.1(a). If, after the amount of the claim is specified by the Indemnified Person, the Holders' Agent objects to any such claim, it may give written notice to the Indemnified Person and the Escrow Agent within thirty (30) days of the later of receipt of the Indemnified Person's notice of claim or the specification by the Indemnified Person of the amount of the claim, advising the Indemnified Person of its objection. If no such notice is timely received from the Holders' Agent by the Indemnified Person, the Indemnified Person will be entitled to payment from the Escrow Funds pursuant to Section 7.2, Losses described in the amount of the Loss arising out of the claim specified in its notice of claim. If the Holders' Agent advises the Indemnified Person within such thirty-day period that it objects to such claim, the Indemnified Person and the Holders' Agent shall promptly meet and use their best efforts to settle the dispute in writing. If the Indemnified Person and the Holders' Agent are unable to reach agreement within thirty days after the Holders' Agent objects to the claimClaim Notice, then the disputed portion dispute may be resolved by any legally available means consistent with the provisions of the claim shall be submitted to arbitration in accordance with Section 10.9. If the Arbitrator shall determine that the Indemnified Person is entitled to indemnification with respect to the dispute submitted, the Indemnified Person will be entitled to obtain payment from the Escrow Funds pursuant to Section 7, in the amount determined by the arbitrator10.10.
(iid) If a claim Any indemnification obligation pursuant to this ARTICLE 9 may be satisfied by a third party is made against an Indemnified Person for reduction by the Purchasers from any amounts which the Indemnified Person is entitled to indemnification under this Article VII, the Indemnified Person shall promptly notify the Holders' Agent in writing of such claim. Such notice shall set forth such information with respect to such claim as is then available may become payable pursuant to the Indemnified Person, including the liability asserted in the claim or the Indemnified Person's good faith estimate thereof. In the event the liability asserted in such claim, or reasonably estimated by an Indemnified Person with respect thereto, shall not exceed the then existing balance of the Escrow Funds, then the Holders' Agent shall have the lesser of (x) twenty (20) days after the receipt of such notice, or (y) the period ending five (5) days before a responsive pleading is required, to undertake to conduct and control, through counsel of its own choosing, and at its sole risk and expense, the good faith settlement and/or defense of such claim, and the Indemnified Person shall cooperate fully with the Holders' Agent in connection therewith; provided:
(a) the Indemnified Person shall be entitled -------- to participate in such settlement or defense through counsel of its own choosing, provided that the fees and expense of such counsel shall be fully borne by the Indemnified Person, and (b) the Holders' Agent shall have, within such aforementioned period, notified the Indemnified Person in writing of its election to undertake the settlement or defense and confirmed in writing the obligation of Forte to indemnify the Indemnitee for the liability asserted in such claim. The Holders' Agent shall obtain the written consent of the Indemnified Person, which consent shall not be unreasonably withheld, before the Holder's Agent ceases to defend, settle or otherwise dispose of such claim if, as a result thereof, the Indemnified Person would become subject to injunctive or other equitable relief or the business of the Indemnified Person would be materially adversely affected in any manner. So long as the Holders' Agent is reasonably contesting any such claim in good faith, the Indemnified Person shall fully cooperate with the Holders' Agent in the defense or settlement of such claim as is reasonably required by the Holders' Agent, and the Indemnified Person shall not pay or settle such claim without the consent of the Holders' Agent; provided, however, that -------- ------- notwithstanding the foregoing, the Indemnified Person shall have the right to pay or settle any such claim at any time without the consent of the Holders' Agent if, and only if, in such event, the Indemnified Person shall have waived in writing any right to indemnification therefor. If the Holders' Agent does not give the Indemnified Person the timely written notice of the undertaking referred to in clause (b) of this subsection (ii) the Indemnified Person shall thereafter have the right to contest, defend, settle or compromise the claim at its exclusive discretion, and may recover its Losses as otherwise provided in this Article VIIEarn Out Amount.
(iii) For purposes of this Article VII, any Loss shall be computed net of any insurance proceeds with respect thereto which reduced the Loss that would otherwise be sustained; provided, however, that in all cases, -------- ------- the timing of the receipt or realization of insurance proceeds shall be taken into account in determining the amount of reduction of the Loss. In any case where an indemnifiable claim is made and the Surviving Corporation (i) receives a tax benefit (such as a deduction or credit) in the tax year or years following the Effective Time of the Merger as a result of the adjustment or adjustments giving rise to the tax claim, and/or (ii) an Indemnified Person receives tax benefits applicable to the period prior to the Effective Time of the Merger which either arise from the adjustment or adjustments giving rise to such claim, or which were not carried on Forte's books as an asset on the Effective Time of the Merger, then the amount of any such claim shall be reduced by the amount of such tax benefits; provided, however, that, in all cases, the timing of the -------- ------- ---- receipt or realization arising from the tax adjustment or adjustments and the tax benefits received shall be taken into account in determining the amount of reduction of the Loss.
Appears in 1 contract
Claim Procedure. 8.5.1 Procedure for asserting claims in the event of Damages not arising out of Third-Party claims
(ia) If an Indemnified Person The Buyers’ Representative shall have notify the Seller of any claim against Forte and/or within 30 Calendar Days of discovering the Forte Shareholders pursuant same. If the Buyers’ Representative fails to this Agreement for which it seeks remedy under this Article VII, it shall promptly give written notice thereof to notify the Holders' Agent and the Escrow Agent including in Seller of a claim within such notice a brief description of the facts upon which such claim is based and, to the extent knowntime period, the amount thereof; provided, that the failure to promptly give any such notice in accordance with -------- the terms specified in this Agreement relevant Buyer shall not affect the Indemnified Person's right to obtain indemnity therefor only be prohibited from bringing a claim to the extent that such failure does not materially prejudice Forte; and, provided, that, the delay in each case, notice doing so has prejudiced the Seller’s defense.
(b) Such notification shall include (to the extent available) a description of such -------- claim shall have been given before the date provided in Section 7.1(a). If, after the nature and amount of the Damages, with reference to the Clause of the Agreement that has been breached and a copy of any supporting documentation that is available in order to allow the Seller to properly evaluate the claim.
(c) The Seller shall have a period of 60 Calendar Days from the receipt of such notification to reject or accept liability for the relevant Buyer’s claim (in whole or in part) in writing. If the Seller rejects any part of the claim in writing within such period, the Seller and the relevant Buyer shall negotiate in good faith to resolve the dispute for a further period of 30 Calendar Days. If the dispute is specified not resolved to the relevant Buyer’s satisfaction by the Indemnified Personend of such further period, the Holders' Agent objects relevant Buyer shall have the right to proceed with that part of its claim that is still in dispute in accordance with Clause 14. The value of each Determined Claim shall be increased to include interest thereon at the sole discretion of the arbitral tribunal referred to within Clause 14.
(d) The Seller shall only be bound by a duty to indemnify (on and subject to the terms of this Agreement) the Buyers in respect of Damages for which it has accepted liability or that are confirmed in an arbitral award (and in the amount declared therein) made pursuant to, and in accordance with Clause 14.
(e) The period for the payment of any amount to be indemnified hereunder, shall be 15 Calendar Days following: (1) the Seller notifying the Buyers’ Representative of its acceptance of liability in accordance with sub-Clause (c) above, or (2) an arbitral award pursuant to Clause 14 being notified to the Seller.
8.5.2 Procedure of asserting claims in the event of Damages arising out of Third-Party claims
(a) Within 30 Calendar Days of receiving notice of a Third-Party claim (which, for the avoidance of doubt shall include an inspection procedure by an administrative authority having jurisdiction over a Subsidiary), the Buyers’ Representative must (save with respect to a Third-Party claim in respect of a Labour Dispute that has a value equal to at least €200,000) notify the Seller of the existence of the aforementioned claim (or, if the time limit for responding to any such claim is less than 30 Calendar Days then the Buyers’ Representative shall notify the Seller of such claim as soon as reasonably practicable after receiving notice thereof but in any case, with sufficient time (to the extent it is able to do so) to allow the Seller to exercise the right to take over conduct of any Third-Party claim), it may give The Buyers’ Representative shall attach to such notice a copy of the Third-Party claim or inspection notice and specify the Clause of the Agreement by virtue of which the Buyers’ Representative believes that such claim should be indemnified. If the Buyers’ Representative fails to notify the Seller of a Third-Party claim procedure within such time period, the relevant Buyer shall only be prohibited from bringing a claim to the extent the delay in doing so has prejudiced the Seller’s defense. Should the notice of the Buyers’ Representative not allow the Seller to exercise the right to take over conduct of such claim according to the terms of this Clause, the Xxxxxx will not be liable for Damages arising out of such Third-Party to the extent that not taking over conduct of such claim has materially prejudiced the defense of such claim.
(b) If the Seller wishes to take over conduct of a Third-Party claim (including any Labour Dispute) (and is not prohibited from doing so under sub-Clause (e) below), then the Seller shall have the right to do so by written notice to the Indemnified Person and the Escrow Agent Buyers’ Representative within thirty (30) days of the later 10 Calendar Days of receipt of the Indemnified Person's notice referred to in sub-Clause (a) provided that the Seller first agrees to indemnify and hold harmless the Buyers and/or their Affiliates (on terms reasonably satisfactory to the Buyers acting in good faith and subject to the limitations of liability set out in this Clause 8). If the Seller is unwilling to provide the indemnity described in the preceding sentence, it may by written notice to the Buyers’ Representative within 10 Calendar Days of receipt of the notice referred to in sub-Clause (a) (and subject always to applicable law) require that the Parties have joint conduct of the Third-Party claim. Following the delivery of such notice, the Buyers’ Representative shall within 15 Calendar Days select one of the Approved Firms in the relevant jurisdiction that represent the Atento group companies to represent the Buyers and/or the Subsidiaries that are named as defendants of the Third-Party claim and such firm shall be jointly instructed by the Seller and the Buyers. If at any time the Seller and the Buyers’ Representative cannot agree on the direction or strategy of the proceedings of the Third-Party claim, the Seller or the Buyers’ Representative (as applicable) shall forthwith notify the other in writing of such determination. Following delivery of any such notice, the Seller shall have 3 Business Days in which to take over sole conduct of the Third-Party claim by delivering to the Buyers’ Representative the indemnity described at the beginning of this sub-Clause 8.5.2, failing which the relevant Buyers shall have sole conduct of the Third-Party claim.
(c) If the Seller takes over conduct of any Third-Party claim: (A) the Seller shall be able to participate in the direction of all negotiations and the correspondence with the Third-Party claimant, appoint a lawyer and legal representative and request that the relevant Buyer contest or settle the claim in accordance with the instructions of the Seller (provided the relevant Buyer shall only be required to comply with a settlement request if the Seller has paid to the relevant Buyer or a Subsidiary (as applicable) the necessary funds to comply with the settlement agreement (having regard to the provisions of Clause 8.4); (B) the relevant Buyer shall share with the Seller in a timely manner any information it receives regarding the proceedings and the Seller shall keep the relevant Buyer informed of the proceedings in a timely and complete manner (but no less frequently than on a weekly basis); and (C) the relevant Buyer shall procure that, upon the prior written request and reasonable notice of claim the Seller and provided that it does not materially disrupt the business or operations of the specification affected Group Companies, the affected Group Companies take all steps reasonably required by the Indemnified Person Seller to facilitate the defense of the Third-Party claim and minimize the Damages arising out of the claim, including providing information and documents that are necessary, including access to the pertinent commercial records and documents and consultations (save to the extent any such disclosure of information would constitute a breach of applicable law or regulation or any binding confidentiality obligation of the relevant Buyer or any Subsidiary or would compromise any legal privilege); and (D) not taking any measure regarding the claim that may conflict with the defense assumed by the Seller or may harm the same until the final resolution thereof, provided always that the Buyer shall not be bound by any obligation under this sub-Clause (b) if it would be detrimental to the interests of the Buyers or any Subsidiary.
(d) If, in order to oppose a Third-Party claim, it is necessary to grant any type of guaranty and/or bond and/or make any type of deposit and/or anticipate payment of the amount of the claim, advising the Indemnified Person of its objection. If no such notice relevant Buyer or the relevant Subsidiary shall do so, if this is timely received from the Holders' Agent required by the Indemnified PersonSeller with sufficient advance notice, always provided that the Seller has previously provided the relevant Buyer or the relevant Subsidiary with the necessary funds.
(e) Notwithstanding any other provision of this Clause 8.5.2 to the contrary, the Indemnified Person will be entitled Seller shall not have the right to payment from take over conduct of any Third-Party claim if: (a) taking over conduct could invalidate or render voidable any insurance policy under which any Buyer or any Subsidiary is a beneficiary; or (b) any Buyer or any Subsidiary has a continuing commercial relationship with the Escrow Funds pursuant to Section 7.2, person bringing the Third-Party claim (as determined by the Buyers’ Representative acting reasonably and in the amount of the Loss arising out of the claim specified in its notice of claimgood faith). If the Holders' Agent advises the Indemnified Person within such thirty-day period that it objects to such claimevents abovementioned are met, the Indemnified Person and Buyer may not settle or arrange extrajudicial agreements without the Holders' Agent shall promptly meet and use their best efforts Seller’s consent (not to settle be unreasonably withheld or delayed) or without (notwithstanding the dispute in writing. If foregoing) giving the Indemnified Person and Seller the Holders' Agent are unable opportunity to reach agreement within thirty days after take over the Holders' Agent objects to the claim, then the disputed portion of the claim shall be submitted to arbitration in accordance with Section 10.9. If the Arbitrator shall determine that the Indemnified Person is entitled to indemnification with respect to the dispute submitted, the Indemnified Person will be entitled to obtain payment from the Escrow Funds pursuant to Section 7, in the amount determined by the arbitrator.
(ii) If a claim by a third party is made against an Indemnified Person for which the Indemnified Person is entitled to indemnification under this Article VII, the Indemnified Person shall promptly notify the Holders' Agent in writing conduct of such claimThird-Party Claim. Such notice shall set forth such information with respect to such claim as is then available to Should the Indemnified Person, including the liability asserted in the claim or the Indemnified Person's good faith estimate thereof. In the event the liability asserted in such claimBuyer do so, or reasonably estimated by an Indemnified Person with respect thereto, shall not exceed should the then existing balance of the Escrow Funds, then the Holders' Agent shall have the lesser of (x) twenty (20) days after the receipt of such notice, or (y) the period ending five (5) days before a responsive pleading is required, Buyer fail to undertake to conduct and control, through counsel of its own choosing, and at its sole risk and expense, the good faith settlement and/or defense of such claim, and the Indemnified Person shall cooperate fully with the Holders' Agent in connection therewith; provided:
(a) the Indemnified Person shall be entitled -------- to participate in such settlement or defense through counsel of its own choosing, provided that the fees and expense of such counsel shall be fully borne by the Indemnified Person, and (b) the Holders' Agent shall have, within such aforementioned period, notified the Indemnified Person in writing of its election to undertake the settlement or defense and confirmed in writing the obligation of Forte to indemnify the Indemnitee for the liability asserted in such claim. The Holders' Agent shall obtain the written consent of the Indemnified Person, which consent shall not be unreasonably withheld, before the Holder's Agent ceases to defend, settle or otherwise dispose of such claim if, as a result thereof, the Indemnified Person would become subject to injunctive or other equitable relief or the business of the Indemnified Person would be materially adversely affected in any manner. So long as the Holders' Agent is reasonably contesting any defend such claim in good faith, the Indemnified Person shall fully cooperate with the Holders' Agent in the defense or settlement Seller will not be liable for any Damages arising out of such Third-Party claim.
(f) If the Seller notifies the Buyers’ Representative that it will not take over conduct of any Third-Party claim as is or the Seller fails to notify the Buyers’ Representative of its desire to take over conduct within the time period set forth in sub-Clause (b) above, the relevant Buyer shall continue to conduct such Third-Party claim in good faith. In such cases, the relevant Buyer shall, subject to the foregoing sentence, be entitled in its sole and absolute discretion to act in any manner that it deems advisable to defend its interests and that of the Company and the Subsidiaries, and such Buyer shall keep the Seller reasonably required informed of material developments. Notwithstanding the above, any settlement or extrajudicial agreement with respect to such Third-Party claim may not cause to the Seller Damages greater than the damages claimed by the Holders' Agent, and the Indemnified Person shall not pay or settle such claim without the consent of the Holders' Agent; provided, however, that -------- ------- notwithstanding the foregoing, the Indemnified Person shall have the right to pay or settle any such claim at any time without the consent of the Holders' Agent if, and only if, in such event, the Indemnified Person shall have waived in writing any right to indemnification thereforThird-Party. If the Holders' Agent does not give Seller is obligated to indemnify a Buyer under this sub-Clause (f) pursuant to its obligations under Clause 8.1, it shall pay the Indemnified Person indemnified amount (as determined in accordance with the timely written notice limitations of liability set out in this Clause 8) within 15 Calendar Days of the undertaking referred to indemnification claim by the Buyer in clause (b) of this subsection (ii) the Indemnified Person shall thereafter have the right to contest, defend, settle or compromise the claim at its exclusive discretion, and may recover its Losses as otherwise provided in this Article VII.
(iii) For purposes of this Article VII, any Loss shall be computed net of any insurance proceeds with respect thereto which reduced the Loss that would otherwise be sustained; provided, however, that in all cases, -------- ------- the timing of the receipt or realization of insurance proceeds shall be taken into account in determining the amount of reduction of the Loss. In any case where an indemnifiable claim is made and the Surviving Corporation (i) receives a tax benefit (such as a deduction or credit) in the tax year or years following the Effective Time of the Merger as a result of the adjustment or adjustments giving rise relation to the tax claim, and/or (ii) an Indemnified Person receives tax benefits applicable to the period prior to the Effective Time of the Merger which either arise from the adjustment or adjustments giving rise to such claim, or which were not carried on Forte's books as an asset on the Effective Time of the Merger, then the amount of any such Third-Party claim shall be reduced by the amount of such tax benefits; provided, however, that, in all cases, the timing of the -------- ------- ---- receipt or realization arising from the tax adjustment or adjustments and the tax benefits received shall be taken into account in determining the amount of reduction of the Lossbecoming a Determined Claim.
Appears in 1 contract
Claim Procedure. (ia) The Purchaser shall give the Seller written notice (the "INDEMNIFICATION NOTICE") of any facts and the circumstances giving rise to a Claim within 30 days of the Purchaser's becoming aware of the facts and circumstances giving rise to such Claim. However, failure of the Purchaser to give such notice within such 30-day period shall not relieve the Seller of its liability with respect to such Claim except to the extent that Purchaser's failure to give notice within such period causes damages to Seller.
(b) If the Claim relates to a claim or the commencement of an Indemnified Person shall have any claim action or proceeding by a Third Party against Forte the Company and/or the Forte Shareholders pursuant Purchaser, then the Seller shall have, upon request within sixty (60) days after receipt of the Indemnification Notice (but not in any event after the settlement or compromise of such Claim), the right to this Agreement for which it seeks remedy under this Article VIIdefend, at its own expense and by its own counsel, any such matter involving the asserted liability of the Company and/or the Purchaser; provided, however, that if the Company and/or the Purchaser determines that there is a reasonable probability that a Claim may materially and adversely affect it, it shall promptly give at its own discretion have the right to defend (with the participation of the Seller, if the Seller so elects), compromise or settle such claim or suit, provided however the Seller has been timely informed of settlement negotiations. The Seller shall make reasonable endeavours to strike a fair balance between the interests of the Seller in keeping the compensation as low as possible and the interests of the Purchaser and any of the Company to maintain good business relations with the Third Party concerned. If the Seller shall decide that it will not defend, at its own expense and by its own counsel, any such matter involving the asserted liability of the Company and/or the Purchaser and the Company and/or the Purchaser shall incur costs directly or indirectly relating to this decision of the Seller, the Purchaser shall have full recourse against the Seller as to the costs incurred.
(c) If the Claim does not relate to a claim or the commencement of an action or proceeding by a Third Party, the Seller shall have thirty (30) days after receipt of the Indemnification Notice during which it shall have the right to object to the subject matter and the amount of the Claim set forth in the Indemnification Notice by delivering written notice thereof to the Holders' Agent and the Escrow Agent including in such notice a brief description of the facts upon which such claim is based and, to the extent known, the amount thereof; provided, that the failure to promptly give any such notice in accordance with -------- the terms specified in this Agreement shall not affect the Indemnified Person's right to obtain indemnity therefor to the extent that such failure does not materially prejudice Forte; and, provided, that, in each case, notice of such -------- claim shall have been given before the date provided in Section 7.1(a). If, after the amount of the claim is specified by the Indemnified Person, the Holders' Agent objects to any such claim, it may give written notice to the Indemnified Person and the Escrow Agent within thirty (30) days of the later of receipt of the Indemnified Person's notice of claim or the specification by the Indemnified Person of the amount of the claim, advising the Indemnified Person of its objection. If no such notice is timely received from the Holders' Agent by the Indemnified Person, the Indemnified Person will be entitled to payment from the Escrow Funds pursuant to Section 7.2, in the amount of the Loss arising out of the claim specified in its notice of claimPurchaser. If the Holders' Agent advises the Indemnified Person Seller does not so object within such thirty-day period period, it shall be conclusively deemed to have agreed that it objects is obligated to such claimindemnify Purchaser for the matters set forth in the Indemnification Notice. If the Seller sends notice to the Purchaser objecting to the matters set forth in the Indemnification Notice, the Indemnified Person Seller and the Holders' Agent Purchaser shall promptly meet and use their best efforts to settle the dispute in writingClaim. If the Indemnified Person Seller and the Holders' Agent Purchaser are unable to reach agreement within thirty days after settle the Holders' Agent objects to Claim, the claim, then the disputed portion of the claim matter shall be submitted to arbitration in accordance with Section 10.9. If the Arbitrator shall determine that the Indemnified Person is entitled to indemnification with respect to the dispute submitted, the Indemnified Person will be entitled to obtain payment from the Escrow Funds pursuant to Section 7, resolved in the amount determined by the arbitrator.
(ii) If a claim by a third party is made against an Indemnified Person for which the Indemnified Person is entitled to indemnification under this Article VII, the Indemnified Person shall promptly notify the Holders' Agent in writing of such claim. Such notice shall manner set forth such information with respect to such claim as is then available to the Indemnified Person, including the liability asserted in the claim or the Indemnified Person's good faith estimate thereof. In the event the liability asserted in such claim, or reasonably estimated by an Indemnified Person with respect thereto, shall not exceed the then existing balance of the Escrow Funds, then the Holders' Agent shall have the lesser of (x) twenty (20) days after the receipt of such notice, or (y) the period ending five (5) days before a responsive pleading is required, to undertake to conduct and control, through counsel of its own choosing, and at its sole risk and expense, the good faith settlement and/or defense of such claim, and the Indemnified Person shall cooperate fully with the Holders' Agent in connection therewith; provided:
(a) the Indemnified Person shall be entitled -------- to participate in such settlement or defense through counsel of its own choosing, provided that the fees and expense of such counsel shall be fully borne by the Indemnified Person, and (b) the Holders' Agent shall have, within such aforementioned period, notified the Indemnified Person in writing of its election to undertake the settlement or defense and confirmed in writing the obligation of Forte to indemnify the Indemnitee for the liability asserted in such claim. The Holders' Agent shall obtain the written consent of the Indemnified Person, which consent shall not be unreasonably withheld, before the Holder's Agent ceases to defend, settle or otherwise dispose of such claim if, as a result thereof, the Indemnified Person would become subject to injunctive or other equitable relief or the business of the Indemnified Person would be materially adversely affected in any manner. So long as the Holders' Agent is reasonably contesting any such claim in good faith, the Indemnified Person shall fully cooperate with the Holders' Agent in the defense or settlement of such claim as is reasonably required by the Holders' Agent, and the Indemnified Person shall not pay or settle such claim without the consent of the Holders' Agent; provided, however, that -------- ------- notwithstanding the foregoing, the Indemnified Person shall have the right to pay or settle any such claim at any time without the consent of the Holders' Agent if, and only if, in such event, the Indemnified Person shall have waived in writing any right to indemnification therefor. If the Holders' Agent does not give the Indemnified Person the timely written notice of the undertaking referred to in clause (b) Article 13.2 of this subsection (ii) the Indemnified Person shall thereafter have the right to contest, defend, settle or compromise the claim at its exclusive discretion, and may recover its Losses as otherwise provided in this Article VIIAgreement.
(iii) For purposes of this Article VII, any Loss shall be computed net of any insurance proceeds with respect thereto which reduced the Loss that would otherwise be sustained; provided, however, that in all cases, -------- ------- the timing of the receipt or realization of insurance proceeds shall be taken into account in determining the amount of reduction of the Loss. In any case where an indemnifiable claim is made and the Surviving Corporation (i) receives a tax benefit (such as a deduction or credit) in the tax year or years following the Effective Time of the Merger as a result of the adjustment or adjustments giving rise to the tax claim, and/or (ii) an Indemnified Person receives tax benefits applicable to the period prior to the Effective Time of the Merger which either arise from the adjustment or adjustments giving rise to such claim, or which were not carried on Forte's books as an asset on the Effective Time of the Merger, then the amount of any such claim shall be reduced by the amount of such tax benefits; provided, however, that, in all cases, the timing of the -------- ------- ---- receipt or realization arising from the tax adjustment or adjustments and the tax benefits received shall be taken into account in determining the amount of reduction of the Loss.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (Vasco Data Security International Inc)
Claim Procedure. (ia) The Purchaser shall give the Warrantor written notice (“Indemnification Notice”) of any facts and the circumstances giving rise to a Claim under this Agreement within 30 days of the Purchaser’s becoming aware of the facts and circumstances giving rise to such Claims. However, failure of the Purchaser to give such notice within such 30-day period shall not relieve the Warrantor of its liability with respect to such Claim except to the extent that Purchaser’s failure to give notice within such period causes damages to the Warrantor.
(b) If the Claim relates to a Claim or the commencement of an Indemnified Person shall have action or proceeding by a Third Party against any claim against Forte member of the Group and/or the Forte Shareholders pursuant Purchaser, then the Warrantor shall have, upon request within sixty (60) days after receipt of the Indemnification Notice (but not in any event after the settlement or compromise of such claim), the right to this Agreement for which it seeks remedy under this Article VIIdefend, at their own expense and by their own counsel, any such matter involving the asserted liability of the relevant member of the Group and/or the Purchaser; provided, however, that if the relevant member of the Group and/or the Purchaser determines that there is a reasonable probability that a Claim may materially and adversely affect it, it shall promptly give at its own discretion have the right to defend (with the participation of the Warrantor, if the Warrantor so elects), compromise or settle such Claim or suit, provided however the Warrantor has been timely involved in the settlement negotiations.
(c) If the Claim does not relate to a Claim or the commencement of an action or proceeding by a Third Party, the Warrantor shall have thirty (30) Business Days after receipt of the Indemnification Notice during which it shall have the right to object to the subject matter and the amount of the claim set forth in the Indemnification Notice by delivering written notice thereof to the Holders' Agent and the Escrow Agent including in such notice a brief description of the facts upon which such claim is based and, to the extent known, the amount thereof; provided, that the failure to promptly give any such notice in accordance with -------- the terms specified in this Agreement shall not affect the Indemnified Person's right to obtain indemnity therefor to the extent that such failure does not materially prejudice Forte; and, provided, that, in each case, notice of such -------- claim shall have been given before the date provided in Section 7.1(a). If, after the amount of the claim is specified by the Indemnified Person, the Holders' Agent objects to any such claim, it may give written notice to the Indemnified Person and the Escrow Agent within thirty (30) days of the later of receipt of the Indemnified Person's notice of claim or the specification by the Indemnified Person of the amount of the claim, advising the Indemnified Person of its objection. If no such notice is timely received from the Holders' Agent by the Indemnified Person, the Indemnified Person will be entitled to payment from the Escrow Funds pursuant to Section 7.2, in the amount of the Loss arising out of the claim specified in its notice of claimPurchaser. If the Holders' Agent advises the Indemnified Person Warrantor does not so object within such thirty-day period period, it shall be conclusively deemed to have agreed that it objects is obligated to such claimindemnify Purchaser for the matters set forth in the Indemnification Notice. If the Warrantor sends notice to the Purchaser objecting to the matters set forth in the Indemnification Notice, the Indemnified Person Warrantor and the Holders' Agent Purchaser shall promptly meet and use their best efforts to settle the dispute in writingClaim. If the Indemnified Person Warrantor and the Holders' Agent Purchaser are unable to reach agreement within thirty days after settle the Holders' Agent objects to Claim, the claim, then the disputed portion of the claim matter shall be submitted to arbitration in accordance with Section 10.9. If the Arbitrator shall determine that the Indemnified Person is entitled to indemnification with respect to the dispute submitted, the Indemnified Person will be entitled to obtain payment from the Escrow Funds pursuant to Section 7, resolved in the amount determined by the arbitratormanner set forth in Article 12 of this Agreement.
(iid) If a claim by a third party is made against an Indemnified Person for which the Indemnified Person is entitled to indemnification under this Article VII, Purchaser makes any Claim or gives notice of any Claim the Indemnified Person shall promptly notify the Holders' Agent in writing of such claim. Such notice shall set forth such information with respect to such claim as is then available to the Indemnified Person, including the liability asserted in the claim or the Indemnified Person's good faith estimate thereof. In the event the liability asserted in such claim, or reasonably estimated by an Indemnified Person with respect thereto, shall not exceed the then existing balance of the Escrow Funds, then the Holders' Agent shall have the lesser of (x) twenty (20) days after the receipt of such notice, or (y) the period ending five (5) days before a responsive pleading is required, to undertake to conduct and control, through counsel of its own choosingPurchaser shall, and at its sole risk and expenseshall procure that the Company shall, on a confidential basis solely for the good faith settlement and/or defense purpose of such claim, and enabling the Indemnified Person shall cooperate fully with Warrantor to assess the Holders' Agent in connection therewith; provided:
Claim or potential Claim (a) provide relevant documents to the Indemnified Person shall be entitled -------- to participate in such settlement or defense through counsel of its own choosing, provided that the fees and expense of such counsel shall be fully borne by the Indemnified Person, Warrantor and (b) (if relevant to the Holders' Agent shall have, within such aforementioned period, notified claim) request the Indemnified Person in writing of its election to undertake the settlement or defense auditors (past and confirmed in writing the obligation of Forte to indemnify the Indemnitee for the liability asserted in such claim. The Holders' Agent shall obtain the written consent present) of the Indemnified Person, which consent shall not be unreasonably withheld, before the Holder's Agent ceases Company to defend, settle or otherwise dispose make available their audit working papers in respect of such claim if, as a result thereof, the Indemnified Person would become subject to injunctive or other equitable relief or the business audits of the Indemnified Person would be materially adversely affected Company’s accounts for any relevant accounting period in any manner. So long as connection with such Claim or potential Claim to the Holders' Agent is reasonably contesting any such claim in good faith, the Indemnified Person shall fully cooperate with the Holders' Agent in the defense or settlement of such claim as is reasonably required by the Holders' Agent, and the Indemnified Person shall not pay or settle such claim without the consent of the Holders' Agent; provided, however, that -------- ------- notwithstanding the foregoing, the Indemnified Person shall have the right to pay or settle any such claim at any time without the consent of the Holders' Agent if, and only if, in such event, the Indemnified Person shall have waived in writing any right to indemnification therefor. If the Holders' Agent does not give the Indemnified Person the timely written notice of the undertaking referred to in clause (b) of this subsection (ii) the Indemnified Person shall thereafter have the right to contest, defend, settle or compromise the claim at its exclusive discretion, and may recover its Losses as otherwise provided in this Article VIIWarrantor.
(iiie) For purposes of this Article VII, any Loss shall All Claims will first be computed net of any insurance proceeds with respect thereto which reduced the Loss that would otherwise be sustained; provided, however, that in all cases, -------- ------- the timing of the receipt or realization of insurance proceeds shall be taken into account in determining the amount of reduction of the Loss. In any case where an indemnifiable claim is made and the Surviving Corporation (i) receives a tax benefit (such as a deduction or credit) in the tax year or years following the Effective Time of the Merger as a result of the adjustment or adjustments giving rise to the tax claim, and/or (ii) an Indemnified Person receives tax benefits applicable to the period prior to the Effective Time of the Merger which either arise settled from the adjustment or adjustments giving rise to such claim, or which were not carried on Forte's books as an asset on the Effective Time of the Merger, then the amount of any such claim shall be reduced by the amount of such tax benefits; provided, however, that, in all cases, the timing of the -------- ------- ---- receipt or realization arising from the tax adjustment or adjustments and the tax benefits received shall be taken into account in determining the amount of reduction of the LossEscrowed Consideration.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (Priceline Com Inc)
Claim Procedure. 8.5.1 Procedure for asserting claims in the event of Damages not arising out of Third-Party claims
(ia) If an Indemnified Person The Buyers’ Representative shall have notify the Seller of any claim against Forte and/or within 30 Calendar Days of discovering the Forte Shareholders pursuant same. If the Buyers’ Representative fails to this Agreement for which it seeks remedy under this Article VII, it shall promptly give written notice thereof to notify the Holders' Agent and the Escrow Agent including in Seller of a claim within such notice a brief description of the facts upon which such claim is based and, to the extent knowntime period, the amount thereof; provided, that the failure to promptly give any such notice in accordance with -------- the terms specified in this Agreement relevant Buyer shall not affect the Indemnified Person's right to obtain indemnity therefor only be prohibited from bringing a claim to the extent that such failure does not materially prejudice Forte; and, provided, that, the delay in each case, notice doing so has prejudiced the Seller’s defense.
(b) Such notification shall include (to the extent available) a description of such -------- claim shall have been given before the date provided in Section 7.1(a). If, after the nature and amount of the Damages, with reference to the Clause of the Agreement that has been breached and a copy of any supporting documentation that is available in order to allow the Seller to properly evaluate the claim.
(c) The Seller shall have a period of 60 Calendar Days from the receipt of such notification to reject or accept liability for the relevant Buyer’s claim (in whole or in part) in writing. If the Seller rejects any part of the claim in writing within such period, the Seller and the relevant Buyer shall negotiate in good faith to resolve the dispute for a further period of 30 Calendar Days. If the dispute is specified not resolved to the relevant Buyer’s satisfaction by the Indemnified Personend of such further period, the Holders' Agent objects relevant Buyer shall have the right to proceed with that part of its claim that is still in dispute in accordance with Clause 14. The value of each Determined Claim shall be increased to include interest thereon at the sole discretion of the arbitral tribunal referred to within Clause 14.
(d) The Seller shall only be bound by a duty to indemnify (on and subject to the terms of this Agreement) the Buyers in respect of Damages for which it has accepted liability or that are confirmed in an arbitral award (and in the amount declared therein) made pursuant to, and in accordance with Clause 14.
(e) The period for the payment of any amount to be indemnified hereunder, shall be 15 Calendar Days following: (1) the Seller notifying the Buyers’ Representative of its acceptance of liability in accordance with sub-Clause (c) above, or (2) an arbitral award pursuant to Clause 14 being notified to the Seller.
8.5.2 Procedure of asserting claims in the event of Damages arising out of Third-Party claims
(a) Within 30 Calendar Days of receiving notice of a Third-Party claim (which, for the avoidance of doubt shall include an inspection procedure by an administrative authority having jurisdiction over a Subsidiary), the Buyers’ Representative must (save with respect to a Third-Party claim in respect of a Labour Dispute that has a value equal to at least €200,000) notify the Seller of the existence of the aforementioned claim (or, if the time limit for responding to any such claim is less than 30 Calendar Days then the Buyers’ Representative shall notify the Seller of such claim as soon as reasonably practicable after receiving notice thereof but in any case, with sufficient time (to the extent it is able to do so) to allow the Seller to exercise the right to take over conduct of any Third-Party claim). The Buyers’ Representative shall attach to such notice a copy of the Third-Party claim or inspection notice and specify the Clause of the Agreement by virtue of which the Buyers’ Representative believes that such claim should be indemnified. If the Buyers’ Representative fails to notify the Seller of a Third-Party claim procedure within such time period, it may give the relevant Buyer shall only be prohibited from bringing a claim to the extent the delay in doing so has prejudiced the Seller’s defense. Should the notice of the Buyers’ Representative not allow the Seller to exercise the right to take over conduct of such claim according to the terms of this Clause, the Seller will not be liable for Damages arising out of such Third-Party to the extent that not taking over conduct of such claim has materially prejudiced the defense of such claim.
(b) If the Seller wishes to take over conduct of a Third-Party claim (including any Labour Dispute) (and is not prohibited from doing so under sub-Clause (e) below), then the Seller shall have the right to do so by written notice to the Indemnified Person and the Escrow Agent Buyers’ Representative within thirty (30) days of the later 10 Calendar Days of receipt of the Indemnified Person's notice referred to in sub-Clause (a) provided that the Seller first agrees to indemnify and hold harmless the Buyers and/or their Affiliates (on terms reasonably satisfactory to the Buyers acting in good faith and subject to the limitations of liability set out in this Clause 8). If the Seller is unwilling to provide the indemnity described in the preceding sentence, it may by written notice to the Buyers’ Representative within 10 Calendar Days of receipt of the notice referred to in sub-Clause (a) (and subject always to applicable law) require that the Parties have joint conduct of the Third-Party claim. Following the delivery of such notice, the Buyers’ Representative shall within 15 Calendar Days select one of the Approved Firms in the relevant jurisdiction that represent the Atento group companies to represent the Buyers and/or the Subsidiaries that are named as defendants of the Third-Party claim and such firm shall be jointly instructed by the Seller and the Buyers. If at any time the Seller and the Buyers’ Representative cannot agree on the direction or strategy of the proceedings of the Third-Party claim, the Seller or the Buyers’ Representative (as applicable) shall forthwith notify the other in writing of such determination. Following delivery of any such notice, the Seller shall have 3 Business Days in which to take over sole conduct of the Third-Party claim by delivering to the Buyers’ Representative the indemnity described at the beginning of this sub-Clause 8.5.2, failing which the relevant Buyers shall have sole conduct of the Third-Party claim.
(c) If the Seller takes over conduct of any Third-Party claim: (A) the Seller shall be able to participate in the direction of all negotiations and the correspondence with the Third-Party claimant, appoint a lawyer and legal representative and request that the relevant Buyer contest or settle the claim in accordance with the instructions of the Seller (provided the relevant Buyer shall only be required to comply with a settlement request if the Seller has paid to the relevant Buyer or a Subsidiary (as applicable) the necessary funds to comply with the settlement agreement (having regard to the provisions of Clause 8.4); (B) the relevant Buyer shall share with the Seller in a timely manner any information it receives regarding the proceedings and the Seller shall keep the relevant Buyer informed of the proceedings in a timely and complete manner (but no less frequently than on a weekly basis); and (C) the relevant Buyer shall procure that, upon the prior written request and reasonable notice of claim the Seller and provided that it does not materially disrupt the business or operations of the specification affected Group Companies, the affected Group Companies take all steps reasonably required by the Indemnified Person Seller to facilitate the defense of the Third-Party claim and minimize the Damages arising out of the claim, including providing information and documents that are necessary, including access to the pertinent commercial records and documents and consultations (save to the extent any such disclosure of information would constitute a breach of applicable law or regulation or any binding confidentiality obligation of the relevant Buyer or any Subsidiary or would compromise any legal privilege); and (D) not taking any measure regarding the claim that may conflict with the defense assumed by the Seller or may harm the same until the final resolution thereof, provided always that the Buyer shall not be bound by any obligation under this sub-Clause (b) if it would be detrimental to the interests of the Buyers or any Subsidiary.
(d) If, in order to oppose a Third-Party claim, it is necessary to grant any type of guaranty and/or bond and/or make any type of deposit and/or anticipate payment of the amount of the claim, advising the Indemnified Person of its objection. If no such notice relevant Buyer or the relevant Subsidiary shall do so, if this is timely received from the Holders' Agent required by the Indemnified PersonSeller with sufficient advance notice, always provided that the Seller has previously provided the relevant Buyer or the relevant Subsidiary with the necessary funds.
(e) Notwithstanding any other provision of this Clause 8.5.2 to the contrary, the Indemnified Person will be entitled Seller shall not have the right to payment from take over conduct of any Third-Party claim if: (a) taking over conduct could invalidate or render voidable any insurance policy under which any Buyer or any Subsidiary is a beneficiary; or (b) any Buyer or any Subsidiary has a continuing commercial relationship with the Escrow Funds pursuant to Section 7.2, person bringing the Third-Party claim (as determined by the Buyers’ Representative acting reasonably and in the amount of the Loss arising out of the claim specified in its notice of claimgood faith). If the Holders' Agent advises the Indemnified Person within such thirty-day period that it objects to such claimevents abovementioned are met, the Indemnified Person and Buyer may not settle or arrange extrajudicial agreements without the Holders' Agent shall promptly meet and use their best efforts Seller's consent (not to settle be unreasonably withheld or delayed) or without (notwithstanding the dispute in writing. If foregoing) giving the Indemnified Person and Seller the Holders' Agent are unable opportunity to reach agreement within thirty days after take over the Holders' Agent objects to the claim, then the disputed portion of the claim shall be submitted to arbitration in accordance with Section 10.9. If the Arbitrator shall determine that the Indemnified Person is entitled to indemnification with respect to the dispute submitted, the Indemnified Person will be entitled to obtain payment from the Escrow Funds pursuant to Section 7, in the amount determined by the arbitrator.
(ii) If a claim by a third party is made against an Indemnified Person for which the Indemnified Person is entitled to indemnification under this Article VII, the Indemnified Person shall promptly notify the Holders' Agent in writing conduct of such claimThird-Party Claim. Such notice shall set forth such information with respect to such claim as is then available to Should the Indemnified Person, including the liability asserted in the claim or the Indemnified Person's good faith estimate thereof. In the event the liability asserted in such claimBuyer do so, or reasonably estimated by an Indemnified Person with respect thereto, shall not exceed should the then existing balance of the Escrow Funds, then the Holders' Agent shall have the lesser of (x) twenty (20) days after the receipt of such notice, or (y) the period ending five (5) days before a responsive pleading is required, Buyer fail to undertake to conduct and control, through counsel of its own choosing, and at its sole risk and expense, the good faith settlement and/or defense of such claim, and the Indemnified Person shall cooperate fully with the Holders' Agent in connection therewith; provided:
(a) the Indemnified Person shall be entitled -------- to participate in such settlement or defense through counsel of its own choosing, provided that the fees and expense of such counsel shall be fully borne by the Indemnified Person, and (b) the Holders' Agent shall have, within such aforementioned period, notified the Indemnified Person in writing of its election to undertake the settlement or defense and confirmed in writing the obligation of Forte to indemnify the Indemnitee for the liability asserted in such claim. The Holders' Agent shall obtain the written consent of the Indemnified Person, which consent shall not be unreasonably withheld, before the Holder's Agent ceases to defend, settle or otherwise dispose of such claim if, as a result thereof, the Indemnified Person would become subject to injunctive or other equitable relief or the business of the Indemnified Person would be materially adversely affected in any manner. So long as the Holders' Agent is reasonably contesting any defend such claim in good faith, the Indemnified Person shall fully cooperate with the Holders' Agent in the defense or settlement Seller will not be liable for any Damages arising out of such Third-Party claim.
(f) If the Seller notifies the Buyers’ Representative that it will not take over conduct of any Third-Party claim as is or the Seller fails to notify the Buyers’ Representative of its desire to take over conduct within the time period set forth in sub-Clause (b) above, the relevant Buyer shall continue to conduct such Third-Party claim in good faith. In such cases, the relevant Buyer shall, subject to the foregoing sentence, be entitled in its sole and absolute discretion to act in any manner that it deems advisable to defend its interests and that of the Company and the Subsidiaries, and such Buyer shall keep the Seller reasonably required informed of material developments. Notwithstanding the above, any settlement or extrajudicial agreement with respect to such Third-Party claim may not cause to the Seller Damages greater than the damages claimed by the Holders' Agent, and the Indemnified Person shall not pay or settle such claim without the consent of the Holders' Agent; provided, however, that -------- ------- notwithstanding the foregoing, the Indemnified Person shall have the right to pay or settle any such claim at any time without the consent of the Holders' Agent if, and only if, in such event, the Indemnified Person shall have waived in writing any right to indemnification thereforThird-Party. If the Holders' Agent does not give Seller is obligated to indemnify a Buyer under this sub-Clause (f) pursuant to its obligations under Clause 8.1, it shall pay the Indemnified Person indemnified amount (as determined in accordance with the timely written notice limitations of liability set out in this Clause 8) within 15 Calendar Days of the undertaking referred to indemnification claim by the Buyer in clause (b) of this subsection (ii) the Indemnified Person shall thereafter have the right to contest, defend, settle or compromise the claim at its exclusive discretion, and may recover its Losses as otherwise provided in this Article VII.
(iii) For purposes of this Article VII, any Loss shall be computed net of any insurance proceeds with respect thereto which reduced the Loss that would otherwise be sustained; provided, however, that in all cases, -------- ------- the timing of the receipt or realization of insurance proceeds shall be taken into account in determining the amount of reduction of the Loss. In any case where an indemnifiable claim is made and the Surviving Corporation (i) receives a tax benefit (such as a deduction or credit) in the tax year or years following the Effective Time of the Merger as a result of the adjustment or adjustments giving rise relation to the tax claim, and/or (ii) an Indemnified Person receives tax benefits applicable to the period prior to the Effective Time of the Merger which either arise from the adjustment or adjustments giving rise to such claim, or which were not carried on Forte's books as an asset on the Effective Time of the Merger, then the amount of any such Third-Party claim shall be reduced by the amount of such tax benefits; provided, however, that, in all cases, the timing of the -------- ------- ---- receipt or realization arising from the tax adjustment or adjustments and the tax benefits received shall be taken into account in determining the amount of reduction of the Lossbecoming a Determined Claim.
Appears in 1 contract
Claim Procedure. (ia) The Purchaser shall give the Seller written notice (the “Indemnification Notice”) of any facts and the circumstances giving rise to a Claim within 30 days of the Purchaser’s becoming aware of the facts and circumstances giving rise to such Claim. However, failure of the Purchaser to give such notice within such 30-day period shall not relieve the Seller of its liability with respect to such Claim except to the extent that Purchaser’s failure to give notice within such period causes damages to Seller (including any liability in the Seller’s ability to prevent or mitigate Damages resulting from the Breach).
(b) If the Claim relates to a claim or the commencement of an Indemnified Person shall have action or proceeding by a Third Party against (or otherwise requires any claim against Forte action by) the Group and/or the Forte Shareholders pursuant Purchaser, then the Seller shall have, upon request within sixty (60) days after receipt of the Indemnification Notice (but not in any event after the settlement or compromise of such Claim), the right to this Agreement for which it seeks remedy under this Article VIIdefend, at its own expense and by its own counsel, any such matter involving the asserted liability of the Group and/or the Purchaser; provided, however, that if the Group and/or the Purchaser determines that there is a reasonable probability that a Claim may materially and adversely affect it, it shall promptly give at its own discretion and at its own costs have the right to defend (without the participation of the Seller), compromise or settle such claim or suit in which event the Seller shall be timely informed of settlement negotiations, in which event the Purchaser shall be deemed to have waived its right to seek recourse against the Seller in relation to that particular Claim. The Party defending the Claim shall make reasonable endeavours to strike a fair balance between the interests of the Seller in keeping the compensation as low as possible and the interests of the Purchaser and any of the Group Companies to maintain good business relations with the Third Party concerned. If the Seller shall decide that it will not defend, at its own expense and by its own counsel, any such matter involving the asserted liability of the Group and/or the Purchaser and the Group and/or the Purchaser shall incur Damages directly or indirectly relating to this decision of the Seller, the Purchaser shall have full recourse against the Seller as to the Damages incurred.
(c) If the Claim does not relate to a claim or the commencement of an action or proceeding by a Third Party, the Seller shall have ninety (90) days after receipt of the Indemnification Notice during which it shall have the right to object to the subject matter and the amount of the Claim set forth in the Indemnification Notice by delivering written notice thereof to the Holders' Agent and Purchaser. If the Escrow Agent including in such notice a brief description of the facts upon which such claim is based and, to the extent known, the amount thereof; provided, that the failure to promptly give any such notice in accordance with -------- the terms specified in this Agreement shall not affect the Indemnified Person's right to obtain indemnity therefor to the extent that such failure Seller does not materially prejudice Forte; and, provided, that, in each case, notice of so object within such -------- claim shall have been given before the date provided in Section 7.1(a). If, after the amount of the claim is specified by the Indemnified Person, the Holders' Agent objects to any such claimninety-day period, it may give written shall be conclusively deemed to have agreed that it is obligated to indemnify Purchaser for the matters set forth in the Indemnification Notice. If the Seller sends notice to the Indemnified Person Purchaser objecting to the matters set forth in the Indemnification Notice, the Seller and the Escrow Agent within thirty (30) days of the later of receipt of the Indemnified Person's notice of claim or the specification by the Indemnified Person of the amount of the claim, advising the Indemnified Person of its objection. If no such notice is timely received from the Holders' Agent by the Indemnified Person, the Indemnified Person will be entitled to payment from the Escrow Funds pursuant to Section 7.2, in the amount of the Loss arising out of the claim specified in its notice of claim. If the Holders' Agent advises the Indemnified Person within such thirty-day period that it objects to such claim, the Indemnified Person and the Holders' Agent Purchaser shall promptly meet and use their best efforts to settle the dispute in writingClaim. If the Indemnified Person Seller and the Holders' Agent Purchaser are unable to reach agreement within thirty days after settle the Holders' Agent objects Claim, the matter shall be resolved in the manner set forth in Article 12.2 of this Agreement.
(d) The Seller hereby covenants and agrees that it will (i) do its utmost effort to withdraw any attachment on any assets of the Companies (including providing (the necessary) securities (such as a bank guarantee)); (ii) compensate the Purchaser and/or the Group Companies for and indemnify and hold the Purchaser and/or the Group Companies harmless against costs (including but not limited to the claim, then the disputed portion fees and disbursements of the claim shall be submitted counsel) and reimbursements pursuant to arbitration in accordance with Section 10.9. If (the Arbitrator shall determine that withdrawal of) any attachment on any assets of the Indemnified Person is entitled Group Companies pursuant to indemnification a Third Party Claim, including costs with respect to the dispute submitted, the Indemnified Person will be entitled to obtain payment from the Escrow Funds pursuant to Section 7, in the amount determined by the arbitrator.
(ii) If issue of a claim by a third party is made against an Indemnified Person for which the Indemnified Person is entitled to indemnification under this Article VII, the Indemnified Person shall promptly notify the Holders' Agent in writing of such claim. Such notice shall set forth such information with respect to such claim as is then available to the Indemnified Person, including the liability asserted in the claim or the Indemnified Person's good faith estimate thereof. In the event the liability asserted in such claim, or reasonably estimated by an Indemnified Person with respect thereto, shall not exceed the then existing balance of the Escrow Funds, then the Holders' Agent shall have the lesser of (x) twenty (20) days after the receipt of such notice, or (y) the period ending five (5) days before a responsive pleading is required, to undertake to conduct and control, through counsel of its own choosing, and at its sole risk and expense, the good faith settlement and/or defense of such claim, and the Indemnified Person shall cooperate fully with the Holders' Agent in connection therewith; provided:
(a) the Indemnified Person shall be entitled -------- to participate in such settlement or defense through counsel of its own choosing, provided that the fees and expense of such counsel shall be fully borne by the Indemnified Personbank guarantee, and (biii) to the Holders' Agent extent that the Seller conducts the defence against a claim, it shall have, within such aforementioned period, notified do so to the Indemnified Person in writing best of its election to undertake abilities and take the settlement or defense and confirmed in writing the obligation of Forte to indemnify the Indemnitee for the liability asserted in such claim. The Holders' Agent shall obtain the written consent of the Indemnified Person, which consent shall not be unreasonably withheld, before the Holder's Agent ceases to defend, settle or otherwise dispose of such claim if, as a result thereof, the Indemnified Person would become subject to injunctive or other equitable relief or the business of the Indemnified Person would be materially adversely affected in any manner. So long as the Holders' Agent is reasonably contesting any such claim in good faith, the Indemnified Person shall fully cooperate with the Holders' Agent in the defense or settlement of such claim as is reasonably required by the Holders' Agent, Purchaser’s and the Indemnified Person shall not pay or settle such claim without the consent of the Holders' Agent; provided, however, that -------- ------- notwithstanding the foregoing, the Indemnified Person shall have the right to pay or settle any such claim at any time without the consent of the Holders' Agent if, and only if, in such event, the Indemnified Person shall have waived in writing any right to indemnification therefor. If the Holders' Agent does not give the Indemnified Person the timely written notice of the undertaking referred to in clause (b) of this subsection (ii) the Indemnified Person shall thereafter have the right to contest, defend, settle or compromise the claim at its exclusive discretion, and may recover its Losses as otherwise provided in this Article VIIGroup Companies’ interests into account.
(iii) For purposes of this Article VII, any Loss shall be computed net of any insurance proceeds with respect thereto which reduced the Loss that would otherwise be sustained; provided, however, that in all cases, -------- ------- the timing of the receipt or realization of insurance proceeds shall be taken into account in determining the amount of reduction of the Loss. In any case where an indemnifiable claim is made and the Surviving Corporation (i) receives a tax benefit (such as a deduction or credit) in the tax year or years following the Effective Time of the Merger as a result of the adjustment or adjustments giving rise to the tax claim, and/or (ii) an Indemnified Person receives tax benefits applicable to the period prior to the Effective Time of the Merger which either arise from the adjustment or adjustments giving rise to such claim, or which were not carried on Forte's books as an asset on the Effective Time of the Merger, then the amount of any such claim shall be reduced by the amount of such tax benefits; provided, however, that, in all cases, the timing of the -------- ------- ---- receipt or realization arising from the tax adjustment or adjustments and the tax benefits received shall be taken into account in determining the amount of reduction of the Loss.
Appears in 1 contract
Claim Procedure. (ia) The Purchaser shall give the Seller written notice (the “Indemnification Notice”) of any facts and the circumstances giving rise to a Claim within 30 days of the Purchaser’s becoming aware of the facts and circumstances giving rise to such Claims. However, failure of the Purchaser to give such notice within such 30-day period shall not relieve the Seller of its liability with respect to such Claim except to the extent that Purchaser’s failure to give notice within such period causes damages to Seller.
(b) If the Claim relates to a claim or the commencement of an Indemnified Person shall have any claim action or proceeding by a Third Party against Forte the Company and/or the Forte Shareholders pursuant Purchaser, then the Seller shall have, upon request within sixty (60) days after receipt of the Indemnification Notice (but not in any event after the settlement or compromise of such Claim), the right to this Agreement for which it seeks remedy under this Article VIIdefend, at its own expense and by its own counsel, any such matter involving the asserted liability of the Company and/or the Purchaser; provided, however, that if the Company and/or the Purchaser determines that there is a reasonable probability that a Claim may materially and adversely affect it, it shall promptly give at its own discretion have the right to defend (with the participation of the Seller, if the Seller so elects), compromise or settle such claim or suit, provided however the Seller has been timely informed of settlement negotiations. If the Seller shall decide that it will not defend, at its own expense and by its own counsel, any such matter involving the asserted liability of the Company and/or the Purchaser and the Company and/or the Purchaser shall incur costs directly or indirectly relating to this decision of the Seller, the Purchaser shall have full recourse against the Seller as to the costs incurred.
(c) If the Claim does not relate to a claim or the commencement of an action or proceeding by a Third Party, the Seller shall have thirty (30) days after receipt of the Indemnification Notice during which it shall have the right to object to the subject matter and the amount of the Claim set forth in the Indemnification Notice by delivering written notice thereof to the Holders' Agent and the Escrow Agent including in such notice a brief description of the facts upon which such claim is based and, to the extent known, the amount thereof; provided, that the failure to promptly give any such notice in accordance with -------- the terms specified in this Agreement shall not affect the Indemnified Person's right to obtain indemnity therefor to the extent that such failure does not materially prejudice Forte; and, provided, that, in each case, notice of such -------- claim shall have been given before the date provided in Section 7.1(a). If, after the amount of the claim is specified by the Indemnified Person, the Holders' Agent objects to any such claim, it may give written notice to the Indemnified Person and the Escrow Agent within thirty (30) days of the later of receipt of the Indemnified Person's notice of claim or the specification by the Indemnified Person of the amount of the claim, advising the Indemnified Person of its objection. If no such notice is timely received from the Holders' Agent by the Indemnified Person, the Indemnified Person will be entitled to payment from the Escrow Funds pursuant to Section 7.2, in the amount of the Loss arising out of the claim specified in its notice of claimPurchaser. If the Holders' Agent advises the Indemnified Person Seller does not so object within such thirty-day period period, it shall be conclusively deemed to have agreed that it objects is obligated to such claimindemnify Purchaser for the matters set forth in the Indemnification Notice. If the Seller sends notice to the Purchaser objecting to the matters set forth in the Indemnification Notice, the Indemnified Person Seller and the Holders' Agent Purchaser shall promptly meet and use their best efforts to settle the dispute in writingClaim. If the Indemnified Person Seller and the Holders' Agent Purchaser are unable to reach agreement within thirty days after settle the Holders' Agent objects to Claim, the claim, then the disputed portion of the claim matter shall be submitted to arbitration in accordance with Section 10.9. If the Arbitrator shall determine that the Indemnified Person is entitled to indemnification with respect to the dispute submitted, the Indemnified Person will be entitled to obtain payment from the Escrow Funds pursuant to Section 7, resolved in the amount determined by the arbitrator.
(ii) If a claim by a third party is made against an Indemnified Person for which the Indemnified Person is entitled to indemnification under this Article VII, the Indemnified Person shall promptly notify the Holders' Agent in writing of such claim. Such notice shall manner set forth such information with respect to such claim as is then available to the Indemnified Person, including the liability asserted in the claim or the Indemnified Person's good faith estimate thereof. In the event the liability asserted in such claim, or reasonably estimated by an Indemnified Person with respect thereto, shall not exceed the then existing balance of the Escrow Funds, then the Holders' Agent shall have the lesser of (x) twenty (20) days after the receipt of such notice, or (y) the period ending five (5) days before a responsive pleading is required, to undertake to conduct and control, through counsel of its own choosing, and at its sole risk and expense, the good faith settlement and/or defense of such claim, and the Indemnified Person shall cooperate fully with the Holders' Agent in connection therewith; provided:
(a) the Indemnified Person shall be entitled -------- to participate in such settlement or defense through counsel of its own choosing, provided that the fees and expense of such counsel shall be fully borne by the Indemnified Person, and (b) the Holders' Agent shall have, within such aforementioned period, notified the Indemnified Person in writing of its election to undertake the settlement or defense and confirmed in writing the obligation of Forte to indemnify the Indemnitee for the liability asserted in such claim. The Holders' Agent shall obtain the written consent of the Indemnified Person, which consent shall not be unreasonably withheld, before the Holder's Agent ceases to defend, settle or otherwise dispose of such claim if, as a result thereof, the Indemnified Person would become subject to injunctive or other equitable relief or the business of the Indemnified Person would be materially adversely affected in any manner. So long as the Holders' Agent is reasonably contesting any such claim in good faith, the Indemnified Person shall fully cooperate with the Holders' Agent in the defense or settlement of such claim as is reasonably required by the Holders' Agent, and the Indemnified Person shall not pay or settle such claim without the consent of the Holders' Agent; provided, however, that -------- ------- notwithstanding the foregoing, the Indemnified Person shall have the right to pay or settle any such claim at any time without the consent of the Holders' Agent if, and only if, in such event, the Indemnified Person shall have waived in writing any right to indemnification therefor. If the Holders' Agent does not give the Indemnified Person the timely written notice of the undertaking referred to in clause (b) Article 12.2 of this subsection (ii) the Indemnified Person shall thereafter have the right to contest, defend, settle or compromise the claim at its exclusive discretion, and may recover its Losses as otherwise provided in this Article VIIAgreement.
(iii) For purposes of this Article VII, any Loss shall be computed net of any insurance proceeds with respect thereto which reduced the Loss that would otherwise be sustained; provided, however, that in all cases, -------- ------- the timing of the receipt or realization of insurance proceeds shall be taken into account in determining the amount of reduction of the Loss. In any case where an indemnifiable claim is made and the Surviving Corporation (i) receives a tax benefit (such as a deduction or credit) in the tax year or years following the Effective Time of the Merger as a result of the adjustment or adjustments giving rise to the tax claim, and/or (ii) an Indemnified Person receives tax benefits applicable to the period prior to the Effective Time of the Merger which either arise from the adjustment or adjustments giving rise to such claim, or which were not carried on Forte's books as an asset on the Effective Time of the Merger, then the amount of any such claim shall be reduced by the amount of such tax benefits; provided, however, that, in all cases, the timing of the -------- ------- ---- receipt or realization arising from the tax adjustment or adjustments and the tax benefits received shall be taken into account in determining the amount of reduction of the Loss.
Appears in 1 contract
Claim Procedure. (a) The Purchaser shall give the Seller written notice (“Indemnification Notice”) of any facts and the circumstances giving rise to a Claim promptly after the Purchaser becoming aware of the facts and circumstances giving rise to such Claim, but the failure to notify the Seller will not relieve the Seller of any liability that it may have [ * ] = 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 AMENDED. to Purchaser, except to the extent that the Seller demonstrates that the defense of such action is prejudiced by the Purchaser’s failure to give such notice.
(b) If the Claim relates to a claim or the commencement of an action or proceeding (a “Proceeding”) by a Third Party against the Company and/or the Purchaser, then the Seller shall have, upon request within 20 business days after receipt of the Indemnification Notice, the right to defend, at its own expense and by its own counsel (and such counsel reasonably satisfactory to Purchaser), any such matter involving the asserted liability of the Company and/or the Purchaser. If the Seller assumes the defense of such a Claim, no compromise or settlement of such Claim may be effected by the Seller without the Purchaser’s consent (which may not be unreasonably withheld) unless (i) If an Indemnified Person shall the sole relief provided is monetary damages that are paid in full by Seller, and (ii) the Purchaser will have no liability with respect to any claim against Forte and/or compromise or settlement of such Claim effected without its consent. Notwithstanding the Forte Shareholders pursuant to this Agreement foregoing, if Purchaser determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its affiliates (other than as a result of monetary damages for which it seeks remedy would be entitled to indemnification under this Article VIIAgreement), the Purchaser may, by notice to the Seller assume the exclusive right to defend, compromise or settle such Proceeding, but the Seller will not be bound by and determination of a Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld).
(c) If the Claim does not relate to a claim or the commencement of a Proceeding by a Third Party, the Seller shall have 20 business days after receipt of the Indemnification Notice during which it shall promptly give have the right to object to the subject matter and the amount of the Claim set forth in the Indemnification Notice by delivering written notice thereof to the Holders' Agent and Purchaser. If the Escrow Agent including in such notice a brief description of the facts upon which such claim is based and, to the extent known, the amount thereof; provided, that the failure to promptly give any such notice in accordance with -------- the terms specified in this Agreement shall not affect the Indemnified Person's right to obtain indemnity therefor to the extent that such failure does not materially prejudice Forte; and, provided, that, in each case, notice of such -------- claim shall have been given before the date provided in Section 7.1(a). If, after the amount of the claim is specified by the Indemnified Person, the Holders' Agent objects to any such claim, it may give written Seller sends notice to the Indemnified Person Purchaser objecting to the matters set forth in the Indemnification Notice, the Seller and the Escrow Agent within thirty (30) days of the later of receipt of the Indemnified Person's notice of claim or the specification by the Indemnified Person of the amount of the claim, advising the Indemnified Person of its objection. If no such notice is timely received from the Holders' Agent by the Indemnified Person, the Indemnified Person will be entitled to payment from the Escrow Funds pursuant to Section 7.2, in the amount of the Loss arising out of the claim specified in its notice of claim. If the Holders' Agent advises the Indemnified Person within such thirty-day period that it objects to such claim, the Indemnified Person and the Holders' Agent Purchaser shall promptly meet and use their best efforts to settle the dispute in writingClaim. If the Indemnified Person Seller and the Holders' Agent Purchaser are unable to reach agreement within thirty days after settle the Holders' Agent objects to Claim, the claim, then the disputed portion of the claim matter shall be submitted to arbitration in accordance with Section 10.9. If the Arbitrator shall determine that the Indemnified Person is entitled to indemnification with respect to the dispute submitted, the Indemnified Person will be entitled to obtain payment from the Escrow Funds pursuant to Section 7, resolved in the amount determined by the arbitratormanner set forth in Article 15 of this Agreement.
(iid) If a claim by a third party is made against an Indemnified Person for which The provisions of sections 8.5 shall not apply to the Indemnified Person is entitled to indemnification under this Article VII, the Indemnified Person shall promptly notify the Holders' Agent in writing of such claim. Such notice shall provisions set forth such information with respect to such claim as is then available to the Indemnified Person, including the liability asserted in the claim or the Indemnified Person's good faith estimate thereof. In the event the liability asserted in such claim, or reasonably estimated by an Indemnified Person with respect thereto, shall not exceed the then existing balance of the Escrow Funds, then the Holders' Agent shall have the lesser of (x) twenty (20) days after the receipt of such notice, or (y) the period ending five (5) days before a responsive pleading is required, to undertake to conduct Article 7.5 and control, through counsel of its own choosing, and at its sole risk and expense, the good faith settlement and/or defense of such claim, and the Indemnified Person shall cooperate fully with the Holders' Agent in connection therewith; provided:
(a) the Indemnified Person shall be entitled -------- to participate in such settlement or defense through counsel of its own choosing, provided that the fees and expense of such counsel shall be fully borne by the Indemnified Person, and (b) the Holders' Agent shall have, within such aforementioned period, notified the Indemnified Person in writing of its election to undertake the settlement or defense and confirmed in writing the obligation of Forte to indemnify the Indemnitee for the liability asserted in such claim. The Holders' Agent shall obtain the written consent of the Indemnified Person, which consent shall not be unreasonably withheld, before the Holder's Agent ceases to defend, settle or otherwise dispose of such claim if, as a result thereof, the Indemnified Person would become subject to injunctive or other equitable relief or the business of the Indemnified Person would be materially adversely affected in any manner. So long as the Holders' Agent is reasonably contesting any such claim in good faith, the Indemnified Person shall fully cooperate with the Holders' Agent in the defense or settlement of such claim as is reasonably required by the Holders' Agent, and the Indemnified Person shall not pay or settle such claim without the consent of the Holders' Agent; provided, however, that -------- ------- notwithstanding the foregoing, the Indemnified Person shall have the right to pay or settle any such claim at any time without the consent of the Holders' Agent if, and only if, in such event, the Indemnified Person shall have waived in writing any right to indemnification therefor. If the Holders' Agent does not give the Indemnified Person the timely written notice of the undertaking referred to in clause (b) of this subsection (ii) the Indemnified Person shall thereafter have the right to contest, defend, settle or compromise the claim at its exclusive discretion, and may recover its Losses as otherwise provided in this Article VIISchedule 7.5.
(iii) For purposes of this Article VII, any Loss shall be computed net of any insurance proceeds with respect thereto which reduced the Loss that would otherwise be sustained; provided, however, that in all cases, -------- ------- the timing of the receipt or realization of insurance proceeds shall be taken into account in determining the amount of reduction of the Loss. In any case where an indemnifiable claim is made and the Surviving Corporation (i) receives a tax benefit (such as a deduction or credit) in the tax year or years following the Effective Time of the Merger as a result of the adjustment or adjustments giving rise to the tax claim, and/or (ii) an Indemnified Person receives tax benefits applicable to the period prior to the Effective Time of the Merger which either arise from the adjustment or adjustments giving rise to such claim, or which were not carried on Forte's books as an asset on the Effective Time of the Merger, then the amount of any such claim shall be reduced by the amount of such tax benefits; provided, however, that, in all cases, the timing of the -------- ------- ---- receipt or realization arising from the tax adjustment or adjustments and the tax benefits received shall be taken into account in determining the amount of reduction of the Loss.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (Dynavax Technologies Corp)
Claim Procedure. (a) If WAKO as an Indemnified Party determines in good faith that there is or has been a Claim giving rise to an indemnification obligation under Section 9 of the Purchase Agreement, and such WAKO wishes to make a claim against the Escrow Shares with respect to such possible Claim, then WAKO shall deliver to the Sellers and to the Escrow Agent a written notice of such Claim (a "Claim Notice") setting forth (i) If an Indemnified Person shall have any claim against Forte and/or the Forte Shareholders pursuant to this Agreement for which it seeks remedy under this Article VII, it shall promptly give written notice thereof to the Holders' Agent and the Escrow Agent including in such notice a brief description of the facts upon which circumstances supporting WAKO's belief that such claim is based andpossible Claim exists or has occurred, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of all Losses that have arisen and may arise as a direct or indirect result of such possible Claims and the corresponding number of Escrow Shares equivalent to such Claims (such aggregate amount being referred to as the extent known"Claim Amount").
(b) If the Sellers shall object in good faith to any portion of any Claim Amount specified in any Claim Notice, the amount thereof; providedSellers shall, that the failure to promptly give any such notice in accordance with -------- the terms specified in this Agreement shall not affect the Indemnified Person's right to obtain indemnity therefor to the extent that such failure does not materially prejudice Forte; and, provided, that, in each case, notice of such -------- claim shall have been given before the date provided in Section 7.1(a). If, after the amount of the claim is specified by the Indemnified Person, the Holders' Agent objects to any such claim, it may give written notice to the Indemnified Person and the Escrow Agent within thirty (30) calendar days after the deemed delivery by WAKO to the Sellers of such Claim Notice, deliver to the later of receipt of the Indemnified Person's notice of claim or the specification Escrow Agent (with a copy to WAKO) a certificate, executed by the Indemnified Person Sellers (a "Certificate of Objections"):
(i) specifying each such amount to which the amount Sellers object in good faith; and
(ii) specifying in reasonable detail the nature and basis for each such good faith objection.
(c) If the Escrow Agent shall not have received a Certificate of Objections objecting to a Claim Amount within thirty (30) calendar days after delivery to the claim, advising the Indemnified Person Sellers of its objection. If no a Claim Notice specifying such notice is timely received from the Holders' Agent by the Indemnified PersonClaim Amount, the Indemnified Person will Sellers shall be entitled deemed to payment have acknowledged that the Claim Amount claimed on such Claim Notice is correct and final and the Escrow Agent shall, transfer to WAKO from the Escrow Funds Shares (such transfer to be applied and deducted from the Escrow Shares pro rata in accordance with each Indemnity Seller's pro rata share of the Escrow Shares that number of Escrow Shares having a value equal to the quotient of (i) the aggregate Losses set forth in the Claim Notice divided by (ii) the Fair Market Value of one share of WAKO Common Stock determined in accordance with and pursuant to Section 7.2, in the amount 9.5 of the Loss arising out Purchase Agreement (the “Escrow Share Value”). For purposes of establishing the expiration of the claim specified in its notice of claim. If the Holders' Agent advises the Indemnified Person within such thirty-30 day period set forth above, Escrow Agent shall conclusively presume that any Claim Notice delivered to it objects was simultaneously delivered to Sellers.
(d) If a Certificate of Objections delivered by the Sellers in response to a Claim Notice contains instructions to the effect that Escrow Shares having an Escrow Share Value equal to a specified portion (but not the entire amount) of the Claim Amount set forth in such Claim Notice are to be transferred to WAKO, then (i) the Escrow Agent shall be authorized to release from the Escrow Account to WAKO that number of Escrow Shares having an Escrow Share Value equal to such claim, the Indemnified Person and the Holders' Agent shall promptly meet and use their best efforts to settle the dispute in writing. If the Indemnified Person and the Holders' Agent are unable to reach agreement within thirty days after the Holders' Agent objects to the claim, then the disputed specified portion of such Claim Amount, and (ii) the claim procedures set forth in Section 5.2(e) below shall be submitted to arbitration in accordance with Section 10.9. If the Arbitrator shall determine that the Indemnified Person is entitled to indemnification followed with respect to the dispute submitted, the Indemnified Person will be entitled to obtain payment from the Escrow Funds pursuant to Section 7, in the amount determined by the arbitratorremaining portion of such Claim Amount.
(iie) If a claim by a third party is made against an Indemnified Person for which the Indemnified Person is entitled to indemnification under this Article VII, the Indemnified Person shall promptly notify the Holders' Agent in writing of such claim. Such notice shall set forth such information with respect to such claim as is then available to the Indemnified Person, including the liability asserted in the claim or the Indemnified Person's good faith estimate thereof. In the event the liability asserted in such claim, or reasonably estimated by an Indemnified Person with respect thereto, shall not exceed the then existing balance of the Escrow Funds, then the Holders' Agent shall have the lesser received a Certificate of Objections within thirty (x30) twenty (20) calendar days after delivery to the receipt Sellers of a Claim Notice, disputing all or a portion of the Claim Amount set forth in such Claim Notice (such Claim Amount or the disputed portion thereof being referred to as the "Disputed Amount"), then, notwithstanding anything contained in Section 5 hereof, the Escrow Agent shall continue to hold in the Escrow Account (in addition to any other Escrow Shares permitted to be retained in the Escrow, whether in connection with any other dispute or otherwise), Escrow Shares having an Escrow Share Value equal to 100% of the Disputed Amount. Such Escrow Shares shall continue to be held in the Escrow Account until such time as either (i) the Escrow Agent receives a settlement agreement executed by each of WAKO and the Sellers (a “Settlement Agreement”) containing instructions regarding the release of such noticeshares, or (y) the period ending five (5) days before a responsive pleading is required, to undertake to conduct and control, through counsel of its own choosing, and at its sole risk and expense, the good faith settlement and/or defense of such claim, and the Indemnified Person shall cooperate fully with the Holders' Agent in connection therewith; provided:
(a) the Indemnified Person shall be entitled -------- to participate in such settlement or defense through counsel of its own choosing, provided that the fees and expense of such counsel shall be fully borne by the Indemnified Person, and (b) the Holders' Agent shall have, within such aforementioned period, notified the Indemnified Person in writing of its election to undertake the settlement or defense and confirmed in writing the obligation of Forte to indemnify the Indemnitee for the liability asserted in such claim. The Holders' Agent shall obtain the written consent of the Indemnified Person, which consent shall not be unreasonably withheld, before the Holder's Agent ceases to defend, settle or otherwise dispose of such claim if, as a result thereof, the Indemnified Person would become subject to injunctive or other equitable relief or the business of the Indemnified Person would be materially adversely affected in any manner. So long as the Holders' Agent is reasonably contesting any such claim in good faith, the Indemnified Person shall fully cooperate with the Holders' Agent in the defense or settlement of such claim as is reasonably required by the Holders' Agent, and the Indemnified Person shall not pay or settle such claim without the consent of the Holders' Agent; provided, however, that -------- ------- notwithstanding the foregoing, the Indemnified Person shall have the right to pay or settle any such claim at any time without the consent of the Holders' Agent if, and only if, in such event, the Indemnified Person shall have waived in writing any right to indemnification therefor. If the Holders' Agent does not give the Indemnified Person the timely written notice of the undertaking referred to in clause (b) of this subsection (ii) the Indemnified Person Escrow Agent receives a copy of a court order containing instructions to the Escrow Agent regarding the release of such Escrow Shares accompanied by an opinion of counsel to the presenting party to the effect that such court order is final and non-appealable and is dispositive for purposes of this Agreement, upon which opinion Escrow Agent shall thereafter have conclusively rely. The Escrow Agent shall thereupon release such Escrow Shares from the right to contest, defend, settle Escrow Account in accordance with the instructions set forth in such settlement agreement or compromise the claim at its exclusive discretion, and may recover its Losses as otherwise provided in this Article VIIcourt order.
(iiif) Escrow Agent is not the stock transfer agent for the Escrow Shares. Accordingly, whenever a distribution of a number of shares of the Escrow Shares is to be made, the Escrow Agent must requisition the appropriate number of shares from such stock transfer agent, delivering to it the appropriate stock certificates. For purposes of this Article VIIAgreement, any Loss the Escrow Agent shall be computed net of any insurance proceeds with respect thereto which reduced deemed to have delivered the Loss that would otherwise be sustained; provided, however, that in all cases, -------- ------- the timing of the receipt or realization of insurance proceeds shall be taken into account in determining the amount of reduction of the Loss. In any case where an indemnifiable claim is made and the Surviving Corporation (i) receives a tax benefit (such as a deduction or credit) in the tax year or years following the Effective Time of the Merger as a result of the adjustment or adjustments giving rise Escrow Shares to the tax claim, and/or (ii) an Indemnified Person receives tax benefits applicable entitled to it when the Escrow Agent has delivered such certificates to such stock transfer agent with instructions to deliver it to the period prior to the Effective Time of the Merger which either arise from the adjustment or adjustments giving rise to such claim, or which were not carried on Forte's books as an asset on the Effective Time of the Merger, then the amount of any such claim shall be reduced by the amount of such tax benefits; provided, however, that, in all cases, the timing of the -------- ------- ---- receipt or realization arising from the tax adjustment or adjustments and the tax benefits received shall be taken into account in determining the amount of reduction of the Lossappropriate person.
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