Claim Procedure. (a) 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 action or proceeding by a Third Party against (or otherwise requires any action by) the Group and/or the 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 defend, 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 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 Purchaser. If the Seller does not so object within such ninety-day period, it 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 Purchaser objecting to the matters set forth in the Indemnification Notice, the Seller and the Purchaser shall use their best efforts to settle the Claim. If the Seller and the Purchaser are unable to settle the 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 fees and disbursements of the counsel) and reimbursements pursuant to (the withdrawal of) any attachment on any assets of the Group Companies pursuant to a Third Party Claim, including costs with respect to the issue of a bank guarantee, and (iii) to the extent that the Seller conducts the defence against a claim, it shall do so to the best of its abilities and take the Purchaser’s and the Group Companies’ interests into account.
Appears in 1 contract
Claim Procedure. (a) The Purchaser shall give the Seller written notice (the “Indemnification Notice”) of any facts and the circumstances If WAKO as an Indemnified Party determines in good faith that there is or has been a Claim giving rise to a Claim within 30 days an indemnification obligation under Section 9 of the Purchaser’s becoming aware of Purchase Agreement, and such WAKO wishes to make a claim against 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 Escrow Shares with respect to such Claim except possible Claim, then WAKO shall deliver to the extent Sellers and to the Escrow Agent a written notice of such Claim (a "Claim Notice") setting forth (i) a brief description of the circumstances supporting WAKO's belief that Purchaser’s failure such possible 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 give notice within such period causes damages Claims (such aggregate amount being referred to Seller (including any liability in as the Seller’s ability to prevent or mitigate Damages resulting from the Breach"Claim Amount").
(b) If the Sellers shall object in good faith to any portion of any Claim relates to a claim or Amount specified in any Claim Notice, the commencement of an action or proceeding by a Third Party against Sellers shall, within thirty (or otherwise requires any action by30) the Group and/or the Purchaser, then the Seller shall have, upon request within sixty (60) calendar days after receipt of the Indemnification Notice (but not in any event after deemed delivery by WAKO to the settlement or compromise Sellers of such Claim)Claim Notice, the right to defend, 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 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 deliver to the Damages incurredEscrow Agent (with a copy to WAKO) a certificate, executed by the Sellers (a "Certificate of Objections"):
(i) specifying each such amount to which the Sellers object in good faith; and
(ii) specifying in reasonable detail the nature and basis for each such good faith objection.
(c) If the Claim does Escrow Agent shall not relate have received a Certificate of Objections objecting to a claim or Claim Amount within thirty (30) calendar days after delivery to the commencement Sellers of an action or proceeding by a Third PartyClaim Notice specifying such Claim Amount, the Seller Sellers shall be deemed to have ninety 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 Shares (90) days after receipt 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 Indemnification Notice during which it shall have the right to object Escrow Shares that number of Escrow Shares having a value equal to the subject matter and quotient of (i) the amount of the Claim aggregate Losses set forth in the Indemnification Claim Notice divided by delivering written notice thereof (ii) the Fair Market Value of one share of WAKO Common Stock determined in accordance with and pursuant to Section 9.5 of the PurchaserPurchase Agreement (the “Escrow Share Value”). If For purposes of establishing the Seller does not so object within such ninety-expiration of the 30 day period, it shall be conclusively deemed to have agreed that it is obligated to indemnify Purchaser for the matters period set forth in the Indemnification Notice. If the Seller sends notice above, Escrow Agent shall conclusively presume that any Claim Notice delivered to the Purchaser objecting it was simultaneously delivered to the matters set forth in the Indemnification Notice, the Seller and the Purchaser shall use their best efforts to settle the Claim. If the Seller and the Purchaser are unable to settle the Claim, the matter shall be resolved in the manner set forth in Article 12.2 of this AgreementSellers.
(d) The Seller hereby covenants and agrees If a Certificate of Objections delivered by the Sellers in response to a Claim Notice contains instructions to the effect that it will 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) do its utmost effort the Escrow Agent shall be authorized to withdraw any attachment on any assets release from the Escrow Account to WAKO that number of the Companies (including providing (the necessary) securities (Escrow Shares having an Escrow Share Value equal to such as a bank guarantee)); specified portion of such Claim Amount, and (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 fees and disbursements of the counselprocedures set forth in Section 5.2(e) and reimbursements pursuant to (the withdrawal of) any attachment on any assets of the Group Companies pursuant to a Third Party Claim, including costs below shall be followed with respect to the issue remaining portion of such Claim Amount.
(e) If the Escrow Agent shall have received a Certificate of Objections within thirty (30) calendar days after delivery to the Sellers of a bank guaranteeClaim 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 (iiia “Settlement Agreement”) containing instructions regarding the release of such shares, or (ii) the Escrow Agent receives a copy of a court order containing instructions to the extent that Escrow Agent regarding the Seller conducts the defence against a claim, it shall do so release of such Escrow Shares accompanied by an opinion of counsel to the best presenting party to the effect that such court order is final and non-appealable and is dispositive for purposes of its abilities and take this Agreement, upon which opinion Escrow Agent shall conclusively rely. The Escrow Agent shall thereupon release such Escrow Shares from the Purchaser’s and Escrow Account in accordance with the Group Companies’ interests into accountinstructions set forth in such settlement agreement or court order.
(f) 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 Agreement, the Escrow Agent shall be deemed to have delivered the Escrow Shares to the Person entitled to it when the Escrow Agent has delivered such certificates to such stock transfer agent with instructions to deliver it to the appropriate person.
Appears in 1 contract
Claim Procedure. (a) 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 promptly after the Purchaser’s Purchaser becoming aware of the facts and circumstances giving rise to such Claim. However, but the failure of to notify the Purchaser to give such notice within such 30-day period shall Seller will not relieve the Seller of its any liability with respect 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 such Claim Purchaser, except to the extent that the Seller demonstrates that the defense of such action is prejudiced by the 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)notice.
(b) If the Claim relates to a claim or the commencement of an action or proceeding (a “Proceeding”) by a Third Party against (or otherwise requires any action by) the Group Company and/or the Purchaser, then the Seller shall have, upon request within sixty (60) 20 business days after receipt of the Indemnification Notice (but not in any event after the settlement or compromise of such Claim)Notice, the right to defend, at its own expense and by its own counselcounsel (and such counsel reasonably satisfactory to Purchaser), any such matter involving the asserted liability of the Group Company and/or the Purchaser; provided. If the Seller assumes the defense of such a Claim, howeverno 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) the sole relief provided is monetary damages that are paid in full by Seller, that if the Group and/or and (ii) the Purchaser will have no liability with respect to any compromise or settlement of such Claim effected without its consent. Notwithstanding the foregoing, if Purchaser determines in good faith that there is a reasonable probability that a Claim Proceeding may materially and adversely affect itit or its affiliates (other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement), it shall at its own discretion and at its own costs have the Purchaser may, by notice to the Seller assume the exclusive right to defend (without the participation of the Seller)defend, compromise or settle such claim or suit in which event Proceeding, but 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 be bound by and determination of a Proceeding so defended or any compromise or settlement effected without 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 incurredconsent (which may not be unreasonably withheld).
(c) If the Claim does not relate to a claim or the commencement of an action or proceeding a Proceeding by a Third Party, the Seller shall have ninety (90) 20 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 Purchaser. If the Seller does not so object within such ninety-day period, it 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 Purchaser objecting to the matters set forth in the Indemnification Notice, the Seller and the Purchaser shall use their best efforts to settle the Claim. If the Seller and the Purchaser are unable to settle the Claim, the matter shall be resolved in the manner set forth in Article 12.2 15 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 provisions 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 sections 8.5 shall not limited apply to the fees provisions set forth in Article 7.5 and disbursements of the counsel) and reimbursements pursuant to (the withdrawal of) any attachment on any assets of the Group Companies pursuant to a Third Party Claim, including costs with respect to the issue of a bank guarantee, and (iii) to the extent that the Seller conducts the defence against a claim, it shall do so to the best of its abilities and take the Purchaser’s and the Group Companies’ interests into accountSchedule 7.5.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Dynavax Technologies Corp)
Claim Procedure. (a) 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).
(bi) If the Claim relates to a an Indemnified Person shall have any claim or the commencement of an action or proceeding by a Third Party against (or otherwise requires any action by) the Group Forte and/or the 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 Forte Shareholders pursuant to defend, 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 itthis Agreement for which it seeks remedy under this Article VII, it shall 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 promptly give written notice thereof to the PurchaserHolders' 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 Seller does not so object Holders' Agent advises the Indemnified Person within such ninetythirty-day period, it shall be conclusively deemed to have agreed period that it is obligated objects to indemnify 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 Noticesuch claim, the Seller Indemnified Person and the Purchaser Holders' Agent shall promptly meet and use their best efforts to settle the Claimdispute in writing. If the Seller Indemnified Person and the Purchaser Holders' Agent are unable to settle reach agreement within thirty days after the ClaimHolders' 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 matter shall Indemnified Person will be resolved entitled to obtain payment from the Escrow Funds pursuant to Section 7, in the manner set forth in Article 12.2 of this Agreementamount determined by the arbitrator.
(dii) 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 Seller hereby covenants 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 agrees the Indemnified Person shall not pay or settle such claim without the consent of the Holders' Agent; provided, however, that it will -------- ------- 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) do its utmost effort to withdraw any attachment on any assets of the Companies (including providing (the necessary) securities receives a tax benefit (such as a bank guarantee)); 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) 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 an Indemnified Person receives tax benefits applicable to the fees and disbursements period prior to the Effective Time of the counsel) and reimbursements pursuant 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 withdrawal of) any attachment on any assets Effective Time of the Group Companies pursuant to a Third Party ClaimMerger, including costs with respect to then the issue amount of a bank guaranteeany such claim shall be reduced by the amount of such tax benefits; provided, and (iii) to however, that, in all cases, the extent that timing of the Seller conducts -------- ------- ---- receipt or realization arising from the defence against a claim, it shall do so to the best of its abilities and take the Purchaser’s tax adjustment or adjustments and the Group Companies’ interests tax benefits received shall be taken into accountaccount in determining the amount of reduction of the Loss.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Genesys Telecommunications Laboratories Inc)
Claim Procedure. 8.5.1 Procedure for asserting claims in the event of Damages not arising out of Third-Party claims
(a) The Purchaser Buyers’ Representative 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 notify the Seller of its liability with respect any claim within 30 Calendar Days of discovering the same. If the Buyers’ Representative fails to notify the Seller of a claim within such Claim except time period, the relevant Buyer shall only be prohibited from bringing a claim to the extent that Purchaser’s failure to give notice within such period causes damages to Seller (including any liability the delay in doing so has prejudiced the Seller’s ability defense.
(b) Such notification shall include (to prevent or mitigate Damages resulting the extent available) a description of 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 Breachreceipt 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 not resolved to the relevant Buyer’s satisfaction by the end of such further period, the 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, 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 ▇▇▇▇▇▇ 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 Claim relates Seller wishes to take over conduct of a Third-Party claim or the commencement of an action or proceeding by a Third Party against (or otherwise requires including any action byLabour Dispute) the Group and/or the Purchaser(and is not prohibited from doing so under sub-Clause (e) below), 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 defend, 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 at its own discretion and at its own costs have the right to defend (without do so by written notice to the participation Buyers’ Representative within 10 Calendar Days of receipt of the Seller), compromise or settle such claim or suit notice referred to in which event sub-Clause (a) provided that the Seller shall be timely informed 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 settlement negotiations, liability set out 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 concernedthis 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 decide within 15 Calendar Days select one of the Approved Firms in the relevant jurisdiction that it will 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 defendagree on the direction or strategy of the proceedings of the Third-Party claim, at its own expense and by its own counsel, the Seller or the Buyers’ Representative (as applicable) shall forthwith notify the other in writing of such determination. Following delivery of any such matter involving notice, the asserted liability Seller shall have 3 Business Days in which to take over sole conduct of the Group and/or Third-Party claim by delivering to the Purchaser and Buyers’ Representative the Group and/or indemnity described at the Purchaser beginning of this sub-Clause 8.5.2, failing which the relevant Buyers shall incur Damages directly or indirectly relating to this decision have sole conduct of the Seller, the Purchaser shall have full recourse against the Seller as to the Damages incurredThird-Party claim.
(c) If the Claim does not relate to a claim or the commencement Seller takes over conduct of an action or proceeding by a Third Party, any Third-Party claim: (A) the Seller shall have ninety (90) days after receipt 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 Indemnification Notice during which it Seller (provided the relevant Buyer shall have only be required to comply with a settlement request if the right to object Seller has paid to the subject matter 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 amount Seller shall keep the relevant Buyer informed of the Claim set forth proceedings in a timely and complete manner (but no less frequently than on a weekly basis); and (C) the Indemnification Notice by delivering relevant Buyer shall procure that, upon the prior written request and reasonable notice thereof to the Purchaser. If the Seller does not so object within such ninety-day period, it 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 Purchaser objecting to the matters set forth in the Indemnification Notice, of the Seller and provided that it does not materially disrupt the Purchaser shall use their best efforts to settle business or operations of the Claim. If affected Group Companies, the affected Group Companies take all steps reasonably required by the Seller to facilitate the defense of the Third-Party claim and minimize the Purchaser Damages arising out of the claim, including providing information and documents that are unable necessary, including access to settle the Claimpertinent 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 matter Buyer shall not be resolved in bound by any obligation under this sub-Clause (b) if it would be detrimental to the manner set forth in Article 12.2 interests of this Agreementthe Buyers or any Subsidiary.
(d) The 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, the relevant Buyer or the relevant Subsidiary shall do so, if this is required by the Seller hereby covenants 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 Seller shall not have the right to 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 person bringing the Third-Party claim (as determined by the Buyers’ Representative acting reasonably and agrees in good faith). If the events abovementioned are met, the Buyer may not settle or arrange extrajudicial agreements without the Seller’s consent (not to be unreasonably withheld or delayed) or without (notwithstanding the foregoing) giving the Seller the opportunity to take over the conduct of such Third-Party Claim. Should the Buyer do so, or should the Buyer fail to defend such claim in good faith, the 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 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 (ib) do 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 utmost effort sole and absolute discretion to withdraw act in any attachment on any assets manner that it deems advisable to defend its interests and that of the Companies (including providing (Company and the necessary) securities (Subsidiaries, and such as a bank guarantee)); (ii) compensate Buyer shall keep the Purchaser and/or Seller reasonably informed of material developments. Notwithstanding the Group Companies for and indemnify and hold the Purchaser and/or the Group Companies harmless against costs (including but not limited to the fees and disbursements of the counsel) and reimbursements pursuant to (the withdrawal of) above, any attachment on any assets of the Group Companies pursuant to a Third Party Claim, including costs settlement or extrajudicial agreement with respect to the issue of a bank guarantee, and (iii) such Third-Party claim may not cause to the extent that Seller Damages greater than the damages claimed by the Third-Party. If the Seller conducts the defence against is obligated to indemnify a claimBuyer under this sub-Clause (f) pursuant to its obligations under Clause 8.1, it shall do so pay the indemnified amount (as determined in accordance with the limitations of liability set out in this Clause 8) within 15 Calendar Days of the indemnification claim by the Buyer in relation to the best of its abilities and take the Purchaser’s and the Group Companies’ interests into accountThird-Party claim becoming a Determined Claim.
Appears in 1 contract
Claim Procedure. (a) The Purchaser shall Indemnified Parties will give the Seller written notice (a "Claim Notice") to the “Indemnification Notice”Sellers containing (i) a description and, if known, the estimated amount of any facts Losses incurred or reasonably expected to be incurred by the Indemnified Parties, and the circumstances giving rise to (ii) a Claim within 30 days reasonable explanation of the Purchaser’s becoming aware basis for the Claim Notice to the extent of the facts and circumstances giving rise to such Claimthen known. However, failure of the Purchaser to give such notice within such 30-day period shall not relieve the Seller of its liability The Claim Notice must be delivered in accordance 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)Section 10.1 hereto.
(b) Within 30 days after delivery of a Claim Notice, the Sellers will deliver to the Indemnified Parties a written response to such Claim Notice. If the Sellers fail to so respond within 30 Days after delivery of the Claim relates to a claim or the commencement of an action or proceeding by a Third Party against (or otherwise requires any action by) the Group and/or the PurchaserNotice, 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 defend, 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 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 Sellers will be deemed to have waived its right irrevocably accepted the Claim Notice and agreed to seek recourse against pay the Seller Losses at issue in relation to that particular Claimthe Claim Notice. CHIDMS1/2982920.1 [***] Confidential treatment has been requested for the bracketed portions. 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 confidential redacted portion has been omitted and the interests of the Purchaser and any of the Group Companies to maintain good business relations filed separately with the Third Party concerned. If the Seller shall decide that it will not defend, at its own expense Securities 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 incurredExchange Commission.
(c) If the Claim does not relate to a claim or the commencement of an action or proceeding by a Third PartyIf, the Seller shall have ninety (90) within 30 days after receipt of the Indemnification Notice during which it shall have the right to object to the subject matter and the amount delivery of the Claim set forth in the Indemnification Notice by delivering written notice thereof to the Purchaser. If the Seller does not so object within such ninety-day period, it 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 Purchaser objecting to the matters set forth in the Indemnification Notice, the Seller and Sellers deliver a written notice in accordance with Section 10.1 hereof disputing the Purchaser shall use their best efforts Indemnified Parties’ entitlement to settle indemnification for the Claim. If Losses described in the Seller and Claim Notice, then the Purchaser are unable to settle the Claim, the matter shall dispute may be resolved in by any legally available means consistent with the manner set forth in Article 12.2 provisions of this AgreementSection 10.10.
(d) The Seller hereby covenants and agrees that it will (i) do its utmost effort Any indemnification obligation pursuant to withdraw this ARTICLE 9 may be satisfied by a reduction by the Purchasers from 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 amounts which may become payable pursuant to the fees and disbursements of the counsel) and reimbursements pursuant to (the withdrawal of) any attachment on any assets of the Group Companies pursuant to a Third Party Claim, including costs with respect to the issue of a bank guarantee, and (iii) to the extent that the Seller conducts the defence against a claim, it shall do so to the best of its abilities and take the Purchaser’s and the Group Companies’ interests into accountEarn Out Amount.
Appears in 1 contract
Claim Procedure. (a) The Purchaser shall give the Seller written notice (the “Indemnification Notice”"INDEMNIFICATION NOTICE") of any facts and the circumstances giving rise to a Claim within 30 days of the Purchaser’s '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 '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 action or proceeding by a Third Party against (or otherwise requires any action by) the Group Company and/or the 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 defend, at its own expense and by its own counsel, any such matter involving the asserted liability of the Group Company and/or the Purchaser; provided, however, that if the Group Company and/or the Purchaser determines that there is a reasonable probability that a Claim may materially and adversely affect it, it shall at its own discretion and at its own costs have the right to defend (without with the participation of the Seller, if the Seller so elects), compromise or settle such claim or suit in which event suit, provided however the Seller shall be has been 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 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 Group Companies 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 Group Company and/or the Purchaser and the Group Company and/or the Purchaser shall incur Damages costs directly or indirectly relating to this decision of the Seller, the Purchaser shall have full recourse against the Seller as to the Damages 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 ninety thirty (9030) 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 Purchaser. If the Seller does not so object within such ninetythirty-day period, it 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 Purchaser objecting to the matters set forth in the Indemnification Notice, the Seller and the Purchaser shall use their best efforts to settle the Claim. If the Seller and the Purchaser are unable to settle the Claim, the matter shall be resolved in the manner set forth in Article 12.2 13.2 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 fees and disbursements of the counsel) and reimbursements pursuant to (the withdrawal of) any attachment on any assets of the Group Companies pursuant to a Third Party Claim, including costs with respect to the issue of a bank guarantee, and (iii) to the extent that the Seller conducts the defence against a claim, it shall do so to the best of its abilities and take the Purchaser’s and the Group Companies’ interests into account.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Vasco Data Security International Inc)
Claim Procedure. (a) The Purchaser shall give the Seller Warrantor written notice (the “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 ClaimClaims. However, failure of the Purchaser to give such notice within such 30-day period shall not relieve the Seller 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 Seller (including any liability in the Seller’s ability to prevent or mitigate Damages resulting from the Breach)Warrantor.
(b) If the Claim relates to a claim Claim or the commencement of an action or proceeding by a Third Party against (or otherwise requires any action by) member of the Group and/or the Purchaser, then the Seller 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 Claimclaim), the right to defend, at its their own expense and by its 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 at its own discretion and at its own costs have the right to defend (without with the participation of the SellerWarrantor, if the Warrantor so elects), compromise or settle such claim Claim or suit suit, provided however the Warrantor has been timely involved 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 Claim or the commencement of an action or proceeding by a Third Party, the Seller Warrantor shall have ninety thirty (9030) days 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 claim set forth in the Indemnification Notice by delivering written notice thereof to the Purchaser. If the Seller Warrantor does not so object within such ninetythirty-day period, it 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 Warrantor sends notice to the Purchaser objecting to the matters set forth in the Indemnification Notice, the Seller Warrantor and the Purchaser shall use their best efforts to settle the Claim. If the Seller Warrantor and the Purchaser are unable to settle the Claim, the matter shall be resolved in the manner set forth in Article 12.2 12 of this Agreement.
(d) The Seller hereby covenants If the Purchaser makes any Claim or gives notice of any Claim the Purchaser shall, and agrees shall procure that it will the Company shall, on a confidential basis solely for the purpose of enabling the Warrantor to assess the Claim or potential Claim (ia) do its utmost effort provide relevant documents to withdraw any attachment on any assets the Warrantor and (b) (if relevant to the claim) request the auditors (past and present) of the Companies (including providing (Company to make available their audit working papers in respect of audits of the necessary) securities (Company’s accounts for any relevant accounting period in connection with 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 Claim or potential Claim to the fees and disbursements of Warrantor.
(e) All Claims will first be settled from the counsel) and reimbursements pursuant to (the withdrawal of) any attachment on any assets of the Group Companies pursuant to a Third Party Claim, including costs with respect to the issue of a bank guarantee, and (iii) to the extent that the Seller conducts the defence against a claim, it shall do so to the best of its abilities and take the Purchaser’s and the Group Companies’ interests into accountEscrowed Consideration.
Appears in 1 contract
Sources: 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
(a) The Purchaser Buyers’ Representative 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 notify the Seller of its liability with respect any claim within 30 Calendar Days of discovering the same. If the Buyers’ Representative fails to notify the Seller of a claim within such Claim except time period, the relevant Buyer shall only be prohibited from bringing a claim to the extent that Purchaser’s failure to give notice within such period causes damages to Seller (including any liability the delay in doing so has prejudiced the Seller’s ability defense.
(b) Such notification shall include (to prevent or mitigate Damages resulting the extent available) a description of 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 Breachreceipt 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 not resolved to the relevant Buyer’s satisfaction by the end of such further period, the 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, 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 Claim relates Seller wishes to take over conduct of a Third-Party claim or the commencement of an action or proceeding by a Third Party against (or otherwise requires including any action byLabour Dispute) the Group and/or the Purchaser(and is not prohibited from doing so under sub-Clause (e) below), 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 defend, 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 at its own discretion and at its own costs have the right to defend (without do so by written notice to the participation Buyers’ Representative within 10 Calendar Days of receipt of the Seller), compromise or settle such claim or suit notice referred to in which event sub-Clause (a) provided that the Seller shall be timely informed 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 settlement negotiations, liability set out 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 concernedthis 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 decide within 15 Calendar Days select one of the Approved Firms in the relevant jurisdiction that it will 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 defendagree on the direction or strategy of the proceedings of the Third-Party claim, at its own expense and by its own counsel, the Seller or the Buyers’ Representative (as applicable) shall forthwith notify the other in writing of such determination. Following delivery of any such matter involving notice, the asserted liability Seller shall have 3 Business Days in which to take over sole conduct of the Group and/or Third-Party claim by delivering to the Purchaser and Buyers’ Representative the Group and/or indemnity described at the Purchaser beginning of this sub-Clause 8.5.2, failing which the relevant Buyers shall incur Damages directly or indirectly relating to this decision have sole conduct of the Seller, the Purchaser shall have full recourse against the Seller as to the Damages incurredThird-Party claim.
(c) If the Claim does not relate to a claim or the commencement Seller takes over conduct of an action or proceeding by a Third Party, any Third-Party claim: (A) the Seller shall have ninety (90) days after receipt 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 Indemnification Notice during which it Seller (provided the relevant Buyer shall have only be required to comply with a settlement request if the right to object Seller has paid to the subject matter 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 amount Seller shall keep the relevant Buyer informed of the Claim set forth proceedings in a timely and complete manner (but no less frequently than on a weekly basis); and (C) the Indemnification Notice by delivering relevant Buyer shall procure that, upon the prior written request and reasonable notice thereof to the Purchaser. If the Seller does not so object within such ninety-day period, it 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 Purchaser objecting to the matters set forth in the Indemnification Notice, of the Seller and provided that it does not materially disrupt the Purchaser shall use their best efforts to settle business or operations of the Claim. If affected Group Companies, the affected Group Companies take all steps reasonably required by the Seller to facilitate the defense of the Third-Party claim and minimize the Purchaser Damages arising out of the claim, including providing information and documents that are unable necessary, including access to settle the Claimpertinent 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 matter Buyer shall not be resolved in bound by any obligation under this sub-Clause (b) if it would be detrimental to the manner set forth in Article 12.2 interests of this Agreementthe Buyers or any Subsidiary.
(d) The 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, the relevant Buyer or the relevant Subsidiary shall do so, if this is required by the Seller hereby covenants 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 Seller shall not have the right to 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 person bringing the Third-Party claim (as determined by the Buyers’ Representative acting reasonably and agrees in good faith). If the events abovementioned are met, the Buyer may not settle or arrange extrajudicial agreements without the Seller's consent (not to be unreasonably withheld or delayed) or without (notwithstanding the foregoing) giving the Seller the opportunity to take over the conduct of such Third-Party Claim. Should the Buyer do so, or should the Buyer fail to defend such claim in good faith, the 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 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 (ib) do 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 utmost effort sole and absolute discretion to withdraw act in any attachment on any assets manner that it deems advisable to defend its interests and that of the Companies (including providing (Company and the necessary) securities (Subsidiaries, and such as a bank guarantee)); (ii) compensate Buyer shall keep the Purchaser and/or Seller reasonably informed of material developments. Notwithstanding the Group Companies for and indemnify and hold the Purchaser and/or the Group Companies harmless against costs (including but not limited to the fees and disbursements of the counsel) and reimbursements pursuant to (the withdrawal of) above, any attachment on any assets of the Group Companies pursuant to a Third Party Claim, including costs settlement or extrajudicial agreement with respect to the issue of a bank guarantee, and (iii) such Third-Party claim may not cause to the extent that Seller Damages greater than the damages claimed by the Third-Party. If the Seller conducts the defence against is obligated to indemnify a claimBuyer under this sub-Clause (f) pursuant to its obligations under Clause 8.1, it shall do so pay the indemnified amount (as determined in accordance with the limitations of liability set out in this Clause 8) within 15 Calendar Days of the indemnification claim by the Buyer in relation to the best of its abilities and take the Purchaser’s and the Group Companies’ interests into accountThird-Party claim becoming a Determined Claim.
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Claim Procedure. (a) 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 ClaimClaims. 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 action or proceeding by a Third Party against (or otherwise requires any action by) the Group Company and/or the 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 defend, at its own expense and by its own counsel, any such matter involving the asserted liability of the Group Company and/or the Purchaser; provided, however, that if the Group Company and/or the Purchaser determines that there is a reasonable probability that a Claim may materially and adversely affect it, it shall at its own discretion and at its own costs have the right to defend (without with the participation of the Seller, if the Seller so elects), compromise or settle such claim or suit in which event suit, provided however the Seller shall be has been 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 Company and/or the Purchaser and the Group Company and/or the Purchaser shall incur Damages costs directly or indirectly relating to this decision of the Seller, the Purchaser shall have full recourse against the Seller as to the Damages 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 ninety thirty (9030) 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 Purchaser. If the Seller does not so object within such ninetythirty-day period, it 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 Purchaser objecting to the matters set forth in the Indemnification Notice, the Seller and the Purchaser shall use their best efforts to settle the Claim. If the Seller and the Purchaser are unable to settle the 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 fees and disbursements of the counsel) and reimbursements pursuant to (the withdrawal of) any attachment on any assets of the Group Companies pursuant to a Third Party Claim, including costs with respect to the issue of a bank guarantee, and (iii) to the extent that the Seller conducts the defence against a claim, it shall do so to the best of its abilities and take the Purchaser’s and the Group Companies’ interests into account.
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