Conduct of Claims. 5.1 If the Buyer or the Company becomes aware of any matter which it believes would or might give rise to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers of the right. 5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right. 5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question. 5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable. 5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered. 5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 2 contracts
Samples: Agreement for the Sale and Purchase of Shares (Nyfix Inc), Agreement for the Sale and Purchase of Shares (Nyfix Inc)
Conduct of Claims. 5.1 If 3.1 Paragraph 3.2 shall apply in circumstances where:
(a) any claim is made against any member of the Buyer or the Company becomes aware of any matter Purchaser’s Group which it believes would or might may give rise to a Warranty Claim claim by the Purchaser against any of the Sellers; or
(taking no account b) any member of paragraph 1.2 for these purposes) and the Buyer Purchaser’s Group is or the Company has a right may be entitled to make recovery from some other person any sum by virtue of any facts or circumstances by reference to which the Purchaser has or may have a claim indemnity against any of the Sellers; or
(c) any of the Sellers shall have paid to the Purchaser an amount in respect of a claim and subsequent to the making of such payment any member of the Purchaser’s Group becomes or shall become entitled to recover from some other person a sum which is recoverable by virtue of the facts and circumstances which gave rise to the claim.
3.2 The Purchaser shall and shall procure that each other member of the Purchaser’s Group shall (subject to any third party (including obligations that the Purchaser or any member of the Purchaser’s Group may have under any applicable policy of insurance):
(a) in relation respect of any claim (other than any claim the defence of which may adversely affect the goodwill of the business of the relevant member of the Purchaser’s Group or any claim which seeks or in respect of which there has been granted injunctive relief) in the case of paragraphs 3.1(a) and 3.1.(b) (subject to that matter, then the Buyer shall promptly notify Purchaser being indemnified to its reasonable satisfaction by the Sellers against all reasonable costs and expenses which may properly be incurred by reason of such action) promptly and diligently take all such action as the right.
5.2 If any sum is paid by or Sellers may reasonably request, including the institution of proceedings and the instruction of professional advisers to act on behalf of the Sellers relevant member of the Purchaser’s Group, to avoid, dispute, resist, compromise, defend or appeal against any such claim against the relevant member of the Purchaser’s Group as is referred to in satisfaction of a Warranty Claim, and the Buyer paragraph 3.1(a) or the Company has or subsequently acquires a right to make such recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 3.1(b) or 5.23.1(c), then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be, in accordance with the reasonable instructions of the Sellers; and
(b) not make any admission of liability or settle or compromise any liability or claim (other than any claim the payment by defence of which may adversely affect the goodwill of the business of the relevant member of the Purchaser’s Group or on behalf any claim which seeks or in respect of which there has been granted injunctive relief) which has given or may give rise to a claim against any of the Sellers in satisfaction without the prior written consent of the relevant Warranty ClaimSellers which consent shall not be unreasonably withheld or delayed; and
(c) in the case of paragraph 3.1(c) only, promptly repay to the Sellers an amount equal to the amount so recovered (less any Taxation payable costs of recovery not reimbursed by the Buyer or Sellers and after deducting any amount of loss incurred by the Company Purchaser in respect of the claim not compensated by the Sellers) or, if lower, the amount paid by the Sellers to the Purchaser. The amount payable to each Seller shall be proportionate to the share of the total sum paid to the Purchaser by that receipt Seller. provided that the Sellers shall indemnify and less hold harmless all reasonable members of the Purchaser’s Group against all damages, losses, costs and expenses incurred by any of them arising from any action taken by any member of the Buyer Purchaser’s Group at the request of the Sellers pursuant to paragraph 3.2(a) or any failure to admit any liability or settle or compromise any liability or claim, as referred to in paragraph 3.2(b), because the Sellers have failed to consent to such admission, settlement or compromise (such consent having been requested).
3.3 The Purchaser shall promptly:
(a) notify the Sellers of any claim made against a member of the Purchaser’s Group as referred to in paragraph 3.1(a), or any right of recovery which is or might be available, as referred to in paragraphs 3.1(b) and 3.1(c), after any member of the Company Purchaser’s Group becomes aware of the same; and
(b) keep the Sellers fully informed of all material developments in recovering that receipt relation to any claim, or savingright of recovery, as referred to in paragraph 3.3(a); and
(c) provide all such information and documentation as the Sellers shall reasonably request in connection with any claim, or right of recovery, as referred to in paragraph 3.3(a).
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Sally Beauty Holdings, Inc.)
Conduct of Claims. 5.1 7.1 If the Buyer or the Company Purchaser becomes aware of any fact, matter which it believes would or might circumstance that may result in a Claim, Indirect Interest Holder Claim or Interim Covenant Claim, the Purchaser shall as soon as reasonably practicable give notice to the Primary Indirect Interest Holders of such information as is reasonably available to the Purchaser to enable the Primary Indirect Interest Holders to assess the merits of the potential claim. No failure by the Purchaser to comply with the provisions of this paragraph 7.1 shall limit the liability of the Primary Indirect Interest Holders to the Purchaser under this Agreement (or the ability of the Purchaser to make a Claim, Indirect Interest Holder Claim or Interim Covenant Claim), except to the extent that the amount of the Claim, Indirect Interest Holder Claim or Interim Covenant Claim is increased as a result of such failure (but then only with respect to such increase).
7.2 If the fact, matter or circumstance that gives rise to a Warranty Claim, Indirect Interest Holder Claim (taking no account or Interim Covenant Claim is a result of paragraph 1.2 for these purposes) and the Buyer or the Company has in connection with a right to make recovery or claim indemnity from any by a third party (including a “Third Party Claim”) then, without prejudice to the rights of the insurers of the Purchaser’s Group and subject to the rights of Chartis Europe Limited under the Warranty and Indemnity Insurance Policy:
(a) the Purchaser shall, as far as reasonably practicable, consult with the Primary Indirect Interest Holders before taking any policy of insurance) action in relation to that matter, then the Buyer Third Party Claim;
(b) no admissions in relation to the Third Party Claim shall promptly notify the Sellers of the right.
5.2 If any sum is paid be made by or on behalf of the Sellers in satisfaction Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the consent of the Primary Indirect Interest Holders; and
(c) subject to the Primary Indirect Interest Holders indemnifying the Purchaser or other members of the Purchaser’s Group concerned against all costs and expenses (including legal and professional costs and expenses) that may be incurred thereby the Purchaser shall, or the Purchaser shall procure that any members of the Purchaser’s Group shall, take such action as a Warranty Primary Indirect Interest Holder may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim, and always provided that:
(i) where one or more Primary Indirect Interest Holder requests action to be taken which, in the Buyer or Purchaser’s reasonable opinion, conflicts with a request received by the Company has or subsequently acquires a right to make recovery or claim indemnity Purchaser from any third party another Primary Indirect Interest Holder, (A) the Purchaser shall notify the Primary Indirect Interest Holders in writing as soon as reasonably practicable that, in its reasonable opinion, such requests conflict (including reasonable particulars of the conflict); and (B) the Purchaser shall be under no obligation to take any policy such action except to the extent jointly agreed by the Primary Indirect Interest Holders who provided the conflicting requests (such joint agreement to be confirmed to the Purchaser in writing, with a copy to each Primary Indirect Interest Holder). Without affecting the Purchaser’s rights or obligations hereunder, a Primary Indirect Interest Holder who makes a request for action under this paragraph 7.2(c) shall promptly notify the other Primary Indirect Interest Holders of insurancesame in writing and provide them with written details of such request;
(ii) any other Warrantor shall reimburse the Primary Indirect Interest Holders their Indirect Interest Holder Warranty Proportion (or in respect of an Interim Covenant Claim, their Indirect Interest Holder Adjustment Proportion) of any amounts paid under the aforementioned indemnity but only to the extent that the Warrantors liability in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers Claim or Interim Covenant Claim in question is less than its liability would have been in respect of the right.Third Party Claim as asserted, taking into account for this purpose legal costs that the Purchaser’s Group might reasonably be expected to have incurred in dealing with such Third Party Claim absent any request by the Primary Indirect Interest Holders pursuant to this paragraph 7.2 (c); and
5.3 The Buyer (iii) any obligation of the Managers to reimburse the Primary Indirect Interest Holders under this paragraph 7.2(c) shall have conduct of be limited to and discharged only from payments (if any) due and payable to the Managers from the Warranty Escrow Account under Clause 9.2, provided further that the Purchaser shall not in any and all litigation circumstances be subject to any obligation or negotiation provided that it shall continue to consult with the Sellers liability whatsoever with respect to the matter provisions of paragraphs 7.2(c)(ii) and (iii) except as provided in questionClauses 9 and 10.
5.4 If there is 7.3 Notwithstanding paragraph 7.2, neither the Purchaser nor any dispute between member of the Sellers and Purchaser’s Group shall be required to take any action or refrain from taking any action, if the Buyer as Purchaser or other member of the Purchaser’s Group concerned reasonably considers such action or omission to whether be materially prejudicial to it or to its business, would be misleading or inaccurate in any material respect or would materially affect the future liability in respect to Tax of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being member of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicablePurchaser’s Group.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 2 contracts
Samples: Deed of Modification and Withdrawal From Escrow Accounts, Spa Deed of Modification and Withdrawal From Escrow Accounts (Watson Pharmaceuticals Inc)
Conduct of Claims. 5.1 If In the Buyer or the Company becomes aware case of any matter which it believes would or might give rise to a Warranty Claim Claims other than Tax Claims (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then which the Buyer shall promptly notify the Sellers provisions of Section 4 (Conduct in relation to Assessments and Tax Proceedings; Tax cooperation) of the right.Tax Covenant shall apply) based on judgments, administrative acts or third-party claims (including claims by administrative bodies) which are directed against the Purchaser, a company of the Purchaser Group or any of the Nordic Companies, to the extent legally permissible and subject to the Purchaser not being required to Prejudicially Act, the Purchaser shall (and shall ensure that the relevant company of the Purchaser Group or the relevant Nordic Company shall):
5.2 If (a) consult with P7S1 and give P7S1 reasonable opportunity to comment on and discuss with the Purchaser any sum is paid measures which the Purchaser, the relevant company of the Purchaser Group or the relevant Nordic Company proposes to take or omit to take in connection with such judgment, administrative act or third-party claim;
(b) permit P7S1 to comment on, participate in, and review any relevant reports, audits or other measures and take into account P7S1's reasonable comments;
(c) permit P7S1, at its own discretion and at its own expense, to take such action, and shall comply with any reasonable request by P7S1 to take such action at P7S1's expense, as P7S1 or their representatives consider expedient in order to dispute, defend, appeal or compromise such judgment, administrative act or third-party claim (including the making of counter-claims or other claims against third parties) in the name of, and on behalf of, the Purchaser, the relevant company of the Sellers in satisfaction of a Warranty Claim, and the Buyer Purchaser Group or the relevant Nordic Company;
(d) provide such information and assistance as P7S1 may reasonably require in connection with the preparation for and conduct of any proceedings and/or negotiations relating to Warranty Claims; and
(e) procure that neither it, any Target Company has or subsequently acquires a right to make recovery or claim indemnity from nor any third party (including under any policy other member of insurance) the Purchaser's Group shall admit liability in respect of of, or compromise or settle, the matter giving rise to that the Warranty ClaimClaim without the written consent of P7S1, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and such consent not to be unreasonably withheld or delayed. P7S1 undertakes to use all litigation or negotiation information provided that it shall continue to consult with the Sellers with respect pursuant to the matter in question.
5.4 If there is any dispute between above provisions of this Section 13.2 only for the Sellers and purpose of disputing, defending, appealing and/or compromising the Buyer as to whether liability in respect of any relevant judgment, administrative act or third party claim should be admitted or whether that claim should be settled or compromisedand/or for exercising their rights under this Section 13.2 and for no other purpose. Furthermore, liability shall not be admittedif P7S1 has made use of its rights under (c) and/or (e) above, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute (i) P7S1 shall be referred to leading counsel agreed between responsible for any aggravation of Losses of the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers Purchaser or the Buyer, Target Companies caused by the President for the time being actions or omissions of P7S1 and (ii) P7S1 shall take any reasonable comments of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability Purchaser in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf pursuit of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is maderelevant third party claims into due consideration. For the purposes avoidance of paragraph 1.2 doubt, Sections 14.4 and 14.5 (a) shall not apply to any liability of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer P7S1 in relation to such Warranty Claim or (as the case may be) the payment by or on behalf aggravation of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.Losses under this Section 13.2
Appears in 2 contracts
Samples: Sale & Purchase Agreement (Discovery Communications, Inc.), Sale & Purchase Agreement (Discovery Communications, Inc.)
Conduct of Claims. 5.1 6.1 If the Buyer Purchaser or any other member of the Company Purchaser Group becomes aware of any claim by a third party which might result in a Claim being made or any other matter or circumstance which it believes would or might could give rise to a Warranty Claim Claim, the Purchaser shall:
(taking no account a) procure that notice thereof is promptly (and in any event within 30 days of becoming aware of it) given to the Seller as regards any such claim, matter or circumstance but shall (subject to the remaining provisions of this paragraph 1.2 6) retain conduct of such claim, subject to consultation and the provision of information to the Seller;
(b) allow, and shall procure that the Company shall provide, reasonable access to the Seller and its representatives upon reasonable notice and during normal business hours to investigate the matter or circumstance alleged to give rise to such claim and whether and to what extent any amount is payable in respect of such claim, and for these purposessuch purpose the Purchaser shall, and shall procure that the Company and the relevant Purchaser Group companies shall, give all such reasonable information (however stored or recorded) and reasonable assistance, including access to premises and personnel, and the Buyer or the Company has a right to make recovery examine and copy or claim indemnity from photograph any third party assets, accounts, documents and records, as the Seller or its representatives may reasonably request;
(including under c) subject to the Seller agreeing to reimburse and indemnify the Purchaser against its reasonable costs and expenses:
(i) take all such action and institute any policy Proceedings, and give any information and assistance, as the Seller may reasonably request to:
(A) dispute, resist, appeal, compromise, defend, remedy or mitigate the matter; or
(B) enforce against a person (other than the Seller) the rights of insurance) any member of the Purchaser Group in relation to that the matter.
6.2 If a Claim is as a result of, or in connection with, a claim by or Liability to, a third party, then the Buyer Purchaser shall promptly notify the Sellers not, and shall procure that no other member of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty ClaimPurchaser Group shall, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) admit Liability in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admittedclaim, and shall procure that the claim shall not be compromised, disposed of or settled or comprised, other than in accordance with without the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being prior written consent of the Law Society of England and Wales on the application of either the Sellers Seller (such consent not to be unreasonably withheld, delayed or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicableconditioned).
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 2 contracts
Samples: Sale and Purchase Agreement, Sale and Purchase Agreement (Xl Group PLC)
Conduct of Claims. 5.1 (a) If the Buyer or the Company any of its Affiliates becomes aware of any claim by a third party which might result in a Claim being made or any other matter or circumstance which it believes would or might could give rise to a Warranty Claim (taking no account including any notice, election or return (including a Tax Return) of paragraph 1.2 for these purposes) and the Buyer or any of its Affiliates), Buyer shall:
(i) procure that notice thereof is promptly (and in any event within 30 days of becoming aware of it) given to VPI as regards any such claim, matter or circumstance but shall (subject to the Company has a remaining provisions of this paragraph) retain conduct of such claim, subject to consultation and the provision of information to VPI;
(ii) allow, and shall procure that its relevant Affiliate shall provide, reasonable access to VPI and its representatives upon reasonable notice and during normal business hours to investigate the matter or circumstance alleged to give rise to such claim and whether and to what extent any amount is payable in respect of such claim, and for such purpose Buyer shall, and shall procure that its relevant Affiliate, give all such reasonable information (however stored or recorded) and reasonable assistance, including access to premises and personnel, and the right to make recovery examine and copy or claim indemnity from photograph any third party assets, accounts, documents and records, as VPI or its representatives may reasonably request;
(including under iii) subject to VPI agreeing to reimburse Buyer to its reasonable satisfaction against its reasonable costs and expenses:
(1) take all such action and institute any policy proceedings, and give any information and assistance, as VPI may reasonably request to: (i) dispute, resist, appeal, compromise, defend, remedy or mitigate the matter; or (ii) enforce against a person (other than VPI or any of insurancethe other Sellers) the rights of Buyer or any of its Affiliates in relation to that the matter; and
(2) in connection with proceedings related to the matter, use advisers nominated by VPI and, if VPI requests, allow VPI the exclusive conduct of the proceedings.
(b) If a Claim is as a result of, or in connection with, a claim by or liability to, a third party, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claimnot, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy shall procure that none of insurance) its Affiliates shall, admit liability in respect of the matter giving rise to that Warranty Claim, and shall procure that the Buyer Claim shall promptly notify not be compromised, disposed of or settled without the Sellers prior written consent of the rightVPI (such consent not to be unreasonably withheld, conditioned or delayed).
5.3 The Buyer (c) Notwithstanding anything in the Agreement to the contrary, VPI shall have conduct exclusive authority and control over the investigation, prosecution, defense and appeal of any and all litigation Actions relating to or negotiation provided that it shall continue to consult arising in connection with the Sellers Excluded Business or the Retained Liabilities including, without limitation, Actions with respect to the matter matters set forth in question.
5.4 If there is any dispute between Section 7.16(a) and all Actions relating to Taxes) (each, a "VPI Action"), and may settle or compromise, or consent to the Sellers and the Buyer as to whether liability in respect entry of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance judgment with respect to any VPI Action without the consent of Buyer. The provisions of this paragraph. Any such dispute ARTICLE XI shall be referred govern with respect to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost Tax-related matters to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine extent any provision in his sole discretion or, if no such determination ARTICLE XI is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicableconflict with this Section 10.7(c).
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 1 contract
Samples: Acquisition Agreement (Valeant Pharmaceuticals International)
Conduct of Claims. 5.1 If In the Buyer or the Company becomes aware case of any matter which it believes would or might give rise to a Warranty Claim Claims other than Tax Claims (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then which the Buyer shall promptly notify the Sellers provisions of Section 4 (Conduct in relation to Assessments and Tax Proceedings; Tax cooperation) of the right.Tax Covenant shall apply) based on judgments, administrative acts or third-party claims (including claims by administrative bodies) which are directed against the Purchaser, a company of the Purchaser Group or any of the Nordic Companies, to the extent legally permissible and subject to the Purchaser not being required to Prejudicially Act, the Purchaser shall (and shall ensure that the relevant company of the Purchaser Group or the relevant Nordic Company shall):
5.2 If (a) consult with P7S1 and give P7S1 reasonable opportunity to comment on and discuss with the Purchaser any sum is paid measures which the Purchaser, the relevant company of the Purchaser Group or the relevant Nordic Company proposes to take or omit to take in connection with such judgment, administrative act or third-party claim;
(b) permit P7S1 to comment on, participate in, and review any relevant reports, audits or other measures and take into account P7S1's reasonable comments;
(c) permit P7S1, at its own discretion and at its own expense, to take such action, and shall comply with any reasonable request by P7S1 to take such action at P7S1's expense, as P7S1 or their representatives consider expedient in order to dispute, defend, appeal or compromise such judgment, administrative act or third-party claim (including the making of counter-claims or other claims against third parties) in the name of, and on behalf of, the Purchaser, the relevant company of the Sellers in satisfaction of a Warranty Claim, and the Buyer Purchaser Group or the relevant Nordic Company;
(d) provide such information and assistance as P7S1 may reasonably require in connection with the preparation for and conduct of any proceedings and/or negotiations relating to Warranty Claims; and
(e) procure that neither it, any Target Company has or subsequently acquires a right to make recovery or claim indemnity from nor any third party (including under any policy other member of insurance) the Purchaser's Group shall admit liability in respect of of, or compromise or settle, the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim without the written consent of P7S1, such consent not to be unreasonably withheld or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovereddelayed.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 1 contract
Samples: Sale and Purchase Agreement
Conduct of Claims. 5.1 6.1 If any member of the Buyer or the Company Buyer's Group becomes aware of any claim against it or any other matter which it believes would or might give rise to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then following provisions shall apply:-
6.1.1 the Buyer shall promptly notify as soon as is reasonably practical (and in any event in a case involving an assessment with a time limit for appeal, 2 weeks prior to expiry of that time limit, and otherwise within 2 weeks of the Buyer becoming aware of such claim or matter) give detailed written notice to the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, matter and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer thereafter shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to regularly consult with the Sellers with respect to the matter in question.matter;
5.4 If there is any dispute between 6.1.2 the Buyer shall provide, and shall procure that each member of the Buyer's Group will provide, to the Sellers and the Sellers' professional advisers access on reasonable notice to premises, personnel and to all relevant assets, documents, records and information within the power, possession or control of the Buyer's Group for the purpose of investigating the matter and/or enabling the Sellers to take such action as is referred to in paragraph 6.1.5(a);
6.1.3 the Buyer shall and shall procure that all other members of the Buyer's Group retain and preserves all relevant assets, documents, records and information within the power, possession or control of the Buyer's Group of, or relating to the Company which are or may be relevant in connection with any Claim for so long as any actual or prospective Claims remain outstanding;
6.1.4 the Sellers shall at no cost be entitled to whether copies of any of the documents or records, and to photograph any premises or assets, referred to in paragraph 6.1.2 or 6.1.3;
6.1.5 the Buyer shall and shall procure that each member of the Buyer's Group will:-
(a) take such action and institute such proceedings, and give such information and assistance, as the Sellers may reasonably request to dispute, resist, appeal, compromise, defend, remedy or mitigate the matter;
(b) not make, and shall procure that no member of the Buyer's Group shall make, any admission of liability in respect of or compromise or settle any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, without the prior written consent of the Sellers; and
(c) in connection with any proceedings related to the matter (other than in accordance with against the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and Sellers) use professional advisers nominated by the Sellers is most likely to result in the third party claim being agreedand, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and if the Sellers for all purposes. Counsel's fees and expenses shall be borne by so request, permit the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason to have exclusive conduct of the enforcement of any rights such as are referred to negotiations and/or proceedings, provided that in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, each case the Sellers shall be deemed never to have been liable to the Buyer in respect indemnify each member of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less Buyer's Group for all reasonable costs and expenses properly incurred as a result of any request or nomination by the Sellers.
6.2 The Buyer shall not submit any document or correspondence to a Tax Authority where the Buyer should reasonably have been aware that such document would give rise to a claim under the Tax Warranties without affording the Sellers the opportunity to comment on such document or correspondence and without taking into account the Company in recovering that receipt or savingSellers' reasonable comments thereon.
Appears in 1 contract
Conduct of Claims. 5.1 If 11.1 Upon the Buyer Purchaser or the Company becomes becoming aware of any a potential claim, action, demand or other matter (a “Relevant Matter”) which it believes constitutes or which would or might give rise to a Warranty an Indemnity Claim (taking no account or an Excluded Claim, irrespective of paragraph 1.2 whether the Seller may be held jointly liable for these purposes) such matter, the Purchaser shall, and the Buyer or shall procure that the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that mattershall, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be:
(A) within twenty-five (25) Business Days notify the Seller by written notice of such Relevant Matter;
(B) subject to the Seller agreeing to pay all reasonable out of pocket expenses of the Purchaser and/or the Company, take such action and give such information and access (during normal working hours) to personnel, premises, chattels, documents and records to the Seller and its professional advisers as the Seller may reasonably request for the purposes of investigating such Relevant Matter and enabling the Seller to take the action referred to in sub paragraph 11.1(C) below;
(C) if so required by the Seller:
(1) to take such action and give such information and assistance in order to avoid, dispute, resist, mitigate, settle, compromise, defend, appeal or remedy such Relevant Matter or the matters which will or are likely to give rise to such Relevant Matter; and/or
(2) make no admission of involvement or of liability, agreement, settlement or compromise with any Third Party in relation to any such Relevant Matter without the prior written consent of the Seller such consent not to be unreasonably withheld, delayed or conditioned; and
(3) keep the Seller fully informed as to the progress of any Relevant Matter and the defence thereof and provide the Seller with copies of all correspondence relating to such Relevant Matter within ten (10) Business Days of receiving or sending such correspondence and otherwise keep the Seller fully informed of the status of such Relevant Matter including, without limitation, by:
(a) providing the Seller with draft copies of any correspondence that the Purchaser or the Company intends to send;
(b) reflecting in such correspondence any reasonable comments that the Seller might have;
(c) informing the Seller about its proposed conduct of the Relevant Matter and reflecting any reasonably comments that the Seller might have about such conduct; and
(4) disclose in writing to the Seller all reasonable information and documents relating to the Relevant Matter.
(D) If requested by the Seller for the purposes of investigating the Relevant Matter or the matters which will or are likely to give rise to a Relevant Matter, give the Seller and its professional advisers reasonable access to:
(1) the payment by or on behalf personnel of the Sellers Purchaser and/or the Company in satisfaction order to interview the personnel; and
(2) any relevant premises, chattels, accounts, documents and records within the power, possession or control of the relevant Warranty ClaimPurchaser and/or the Company in order to, less at the Seller’s own expense, examine and photograph the premises and chattels and to examine, photograph and take copies of the accounts, documents and records; and
(3) take reasonable action to mitigate any Taxation payable loss suffered by the Buyer or it, any member of the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or savingsuch Relevant Matter.
Appears in 1 contract
Conduct of Claims. 5.1 If the Buyer or the Company Purchaser becomes aware of any matter claim or potential claim by a third party which might reasonably be expected to result in a Non-Tax Claim being made (a third party claim), the Purchaser shall, subject to clause 5.2:
(a) promptly (and in any event within 30 days of becoming aware of it) give notice of such third party claim to the Sellers containing such details as the Purchaser has available to it believes would or might in respect of and, if available to the Purchaser, as are sufficient to enable the Sellers to understand, the nature and extent of the third party claim, provided that any failure by the Purchaser to give rise to a Warranty Claim (taking no account such notice within such period shall not prejudice the right of paragraph 1.2 for these purposes) and the Buyer or the Company has a right Purchaser to make recovery or claim indemnity from any a Claim in relation to such third party claim (including under although this proviso shall be without prejudice to any policy rights for breach of insurancecontract which the Sellers may have as a result of such failure);
(b) not make (and procure that each member of the Purchaser Group shall not make) any admission of liability, agreement or compromise with any person, body or authority in relation to that matter, then the Buyer shall promptly notify the Sellers third party claim without prior written approval of the rightSellers’ Representative (such consent not to be unreasonably withheld or delayed);
(c) subject to the Purchaser or the relevant member of the Purchaser Group being indemnified by the relevant Seller(s) against all reasonable out of pocket costs and expenses incurred in respect of that third party claim (including any such costs and expenses incurred in performing its obligations under clause 5.3):
(i) take (and procure that each member of the Purchaser Group shall take) such action as the relevant Seller(s) may reasonably request to avoid, resist, dispute, appeal, compromise or defend such third party claim;
(ii) allow (or, as appropriate, procure that the relevant member of the Purchaser Group shall allow) the relevant Seller(s) to take over the conduct of all proceedings and/or negotiations of whatsoever nature arising in connection with the third party claim in question but on the basis that the relevant Seller(s) shall not make any admission of liability, agreement or compromise with any person, body or authority in relation to that third party claim without the prior written consent of the Purchaser (such consent not to be unreasonably withheld or delayed, and provided that such consent shall not be required if the relevant Seller(s) have irrevocably undertaken to the Purchaser to satisfy any amount payable by the Purchaser or the relevant member of the Purchaser Group in connection with such admission of liability, agreement or compromise); and
(iii) provide (or procure that the relevant member of the Purchaser Group shall provide) such information and assistance as the relevant Seller(s) may reasonably require in connection with the preparation for and conduct of any proceedings and/or negotiations relating to that third party claim.
5.2 If Nothing in clause 5.1 shall oblige the Purchaser to take or to procure that any sum is paid by or on behalf other member of the Sellers Purchaser Group shall take any action or do anything which, in satisfaction the reasonable opinion of the Purchaser, is likely to have a Warranty Claim, and material adverse impact on the Buyer reputation or goodwill of any of the Company has Target Companies or subsequently acquires a right of any member of the Purchaser Group. If the relevant Seller(s) fails to make recovery indemnify the Purchaser or claim indemnity from any third party (including under any policy relevant member of insurancethe Purchaser Group in accordance with clause 5.1(c) in respect of a third party claim within 21 days after the matter giving rise Sellers have received notice of such third party claim containing sufficient details to that Warranty Claimenable the Sellers to understand the nature and extent of the third party claim, the Buyer Purchaser shall promptly notify the Sellers cease to have any obligations under clause 5.1 in respect of the rightthat third party claim.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with If the Purchaser makes a Claim against the Sellers with respect to the matter in question.
5.4 If there is any dispute between or notifies the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted which might lead to such a Claim being made, the Purchaser shall:
(a) make available to accountants and other representatives appointed by the relevant Seller(s) such access during normal business hours to the personnel, records and information of that Target Company as the relevant Seller(s) reasonably request in connection with such Claim or whether that third party claim should be settled or compromised(including, liability shall not be admittedfor the avoidance of doubt, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either of remedying such Claim); and
(b) to the Sellers or the Buyer, extent reasonably requested by the President for relevant Seller(s), use all reasonable endeavours to procure that the time being auditors (both past and then current) of any relevant Target Company make available their audit working papers in respect of audits of the Law Society accounts of England and Wales on the application of either the Sellers that Target Company for any accounting period relevant to such Claim or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost (subject to the Sellers. The decision of counsel (who shall act as expert and not as arbitratorrelevant Seller(s) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation first providing to such Warranty Claim or potential Warranty Claim shall be reduced auditors a hold harmless letter in a form customarily required by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of such auditors as a Warranty Claim, then the Buyer shall pay the Amount Recovered condition to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never making their audit working papers available to have been liable to the Buyer in respect of the Amount Recoveredthird parties).
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Business (Harsco Corp)
Conduct of Claims. 5.1 8.1 If either the Buyer or the Company becomes become aware of any a matter which it believes would or they reasonably consider might give rise to a Warranty Claim (taking no account of paragraph 1.2 or a Claim for these purposes) and the Buyer Tax or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid by or on behalf one of the Sellers in satisfaction becomes aware of a Warranty Claimmatter which it reasonably considers might give rise to a Claim pursuant to the Buyer’s Warranties then such party:
8.1.1 shall (or, and in the case of the Buyer, shall procure that the Company shall) as soon as reasonably practicable give notice to the Sellers or the Buyer or as the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect case may be of the matter giving rise to that Warranty Claim, the Buyer and shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers or the Buyer as the case may be with respect to the such matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability but such notice shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with a condition precedent to the provisions liability of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by Buyer as the President for the time being of the Law Society of England and Wales on the application of either case may be;
8.1.2 shall provide to the Sellers or the Buyer as the case may be and its advisers reasonable access (at reasonable hours and with reasonable prior notice having been given) to premises and personnel and to relevant assets, documents and records within the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled ’s or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or ’ Group (as the case may be) for the payment by or on behalf purposes of investigating the matter;
8.1.3 (at the requesting Party's cost) may take copies of the Sellers documents or records relevant to the matter, and photograph the premises or assets, referred to in satisfaction Clause 8.1.2;
8.1.4 subject to the following provisions of this Clause 8, shall (and in the case of the relevant Warranty Claim, less any Taxation payable by Buyer shall procure that the Company shall) take such action and give such information and assistance in connection with the affairs of the Buyer or the Company or the Sellers as the requesting party may reasonably request in writing to negotiate, avoid, dispute, resist or defend against the matter;
8.1.5 shall indemnify the other party against all costs and expenses reasonably incurred by that other party or any member of such party’s Group in complying with their obligations under this Clause 8.
8.2 The Buyer and, as the case may be, the Sellers shall not be obliged to take or procure the taking of any of the following actions pursuant to its obligations contained in Clause 8.1.4:
8.2.1 the submission of any proposal to settle or compromise the relevant matter made by the Sellers or the Buyer (as the case may be) of which the Buyer (or the Sellers as the case may be) (acting reasonably) does not approve;
8.2.2 agreeing to the settlement or compromise of any claim or any proposal for the same which is likely to have an adverse effect on the future liability of the Company, the Buyer or any member of the Buyer’s Group or the Sellers or any member of the Sellers’ Group unless the Sellers (or the Buyer as the case may be) indemnify the Buyer (or the Sellers as the case may be), or the Company or the relevant member of the Buyer’s Group or the Sellers’ Group (as the case may be) against any such future liability;
8.2.3 complying with any unreasonable instruction of the Sellers or the Buyer as the case may be or taking any action or procuring the taking of any action which the Buyer or the Sellers (as the case may be) considers (acting reasonably) to be onerous or prejudicial to the Buyer or any member of the Buyer’s Group or the Sellers or any member of the Sellers’ Group (as the case may be).
8.3 If a Party does not request the other to take action pursuant to Clause 8.1.4 or shall fail to indemnify the other Party or the Company concerned in accordance with Clause 8.1.5 within 14 days of the written notice to the Sellers (or the Buyer as the case may be) served in accordance with Clause 8.
1.1 the Buyer (or the Sellers as the case may be) or the Company shall be free to pay or settle the relevant matter on such terms as it may in its absolute discretion think fit notwithstanding the provisions of Clause 8.2.
8.4 Any claim under the Warranties or the Buyer's Warranties shall (if it has not been previously satisfied, settled or withdrawn) be deemed to be irrevocably withdrawn and waived at the expiration of twelve months from the date of giving notice of such claim (or claim under the Buyer’s Warranties) unless legal proceedings in respect thereof have been commenced by the other party by issuing and serving such proceedings on the Sellers (or the Buyer as the case may be) and the loss giving rise to any such claim (or claim under the Buyer’s Warranties) which shall be so deemed withdrawn and waived shall not be capable of being the subject of a further claim (or claim under the Buyer’s Warranties).
8.5 Subject to Clause 8.3 notwithstanding any failure by the Buyer to notify the Sellers or of the Sellers to notify the Buyer (as the case may be) pursuant to Clause 8.
1.1 the Buyer (or the Sellers as the case may be) shall not (and shall procure, only in the case of the Buyer, that the Company shall not) settle or compromise any such claim or make any admission of liability without the prior written consent of the Sellers or the Buyer (as the case may be) (which shall not be unreasonably withheld or delayed).
8.6 If any Claim (or claim under the Buyer’s Warranties) shall arise by reason of some liability which, at the time the Claim (or claim under the Buyer’s Warranties) is notified to the Sellers (or the Buyer as the case may be), is contingent only, the Sellers (or the Buyer as the case may be) shall not be under any obligation to make any payment in respect of such Claim (or claim under the Buyer’s Warranties) unless and until the contingent liability crystallises as an actual liability. Provided that receipt and less all reasonable costs and expenses such Claim shall have been notified to the Sellers or the Buyer (as the case may be) in accordance with Clause 6.1.6 then Clause 8.4 shall be amended in relation to such Claim (or claim under the Buyer’s Warranties) so as to require that legal proceedings be commenced within twelve months from the date on which the said liability ceases to be contingent or becomes capable of being quantified, as the case may be.
8.7 Nothing in this agreement shall be deemed to relieve the Buyer or of the Buyer and Sellers (as the Company in recovering that receipt case may be) from any duty to mitigate any loss or savingdamage incurred by it.
Appears in 1 contract
Conduct of Claims. 5.1 If the Buyer Purchaser or the Company becomes aware of any matter which it believes would fact, matter, event or might circumstance that will or may reasonably give rise to a Warranty Claim claim against the Seller under any of the Warranties excluding the Warranties in paragraph 18 of Schedule 3 (taking no account of paragraph 1.2 for these purposesWarranties) and such fact, matter, event or circumstance relates to an actual or threatened claim, action or demand by or liability to a third party excluding any member of the Buyer Seller’s Group (a “third party claim”) then:
(a) the Purchaser shall not make, and shall procure that neither the Company nor any other member of the Purchaser’s Group shall make, any admission of liability in relation to the third party claim nor compromise, dispose of or settle the third party claim without the prior written consent of the Seller (such consent not to be unreasonably withheld or delayed);
(b) the Purchaser shall, and shall procure that the Company and all other members of the Purchaser’s Group shall, at the joint written request of the Purchaser and the Seller:
(i) take such action as the Purchaser and the Seller may jointly and reasonably require to avoid, contest, dispute, resist, appeal, compromise or defend the third party claim (including, without limitation, making counter claims and exercising any contractual rights of set off against third parties and appointing lawyers and other professional advisers), and keeping each other informed as to the steps which are being taken in connection with the third party claim; and
(ii) render or cause to be rendered such assistance as the Purchaser and the Seller may reasonably require (including providing access to information (save that this information shall not extend to any information which relates to any possible claim which may be by the Purchaser against the Seller and which is the subject of legal privilege) and to employees of the Purchaser or the Company has a right or any member of the Purchaser’s Group while such employees continue to make recovery remain in the employment of the Purchaser, the Company or claim indemnity from any other relevant member of the Purchaser’s Group) for the purpose of avoiding, contesting, disputing, resisting, appealing, compromising or defending the third party claim for so long as it remains outstanding Provided that
(including under any policy of insuranceA) in relation the event of any disagreement or dispute between the Seller and the Purchaser as to that matterany matter in connection with or pursuant to paragraph 8(b)(i), and/or the conduct of the third party claim generally pursuant to paragraph 8(b)(i), then the Buyer Purchaser shall promptly notify defer to the Sellers Seller’s reasonable request (such that any reference to the joint written request or similar of the right.
5.2 If Purchaser and the Seller or any sum is paid action or assistance as the Purchaser and the Seller may jointly and reasonably require or may reasonably require shall be deemed to be substituted by or on behalf references to a written request of the Sellers in satisfaction of a Warranty ClaimSeller and action or assistance as the Seller may reasonably require respectively);
(B) the Seller shall indemnify the Purchaser, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect and each member of the matter giving rise Purchaser’s Group (to that Warranty Claimthe extent relevant) and keep the Purchaser, the Buyer shall promptly notify the Sellers Company and each member of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect Purchaser’s Group (to the matter in question.
5.4 If there is extent relevant) indemnified against any dispute between Losses incurred by it to the Sellers and the Buyer extent that any such Losses are incurred as to whether liability in respect a direct result of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance complying with the provisions of this paragraph. Any such dispute shall be referred or directly pursuant to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being paragraph 8(b)(i) and/or (ii) as a direct result of the Law Society Seller’s request or any action taken by or at the request of England and Wales on the application Seller pursuant to (A) above;
(C) the Seller’s rights pursuant to this paragraph 8 shall not include the right to oblige the Company, the Purchaser, or any other member of either the Sellers Purchaser’s Group to take proceedings against any counterparty to any agreement or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as arrangement to which the Company, the Purchaser or any member of the courses of conduct proposed by the Buyer and by the Sellers Purchaser’s Group is most likely a party or to result take any action in the name of the Company, the Purchaser or any other member of the Purchaser’s Group;
(D) where the Seller has conduct of a third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.claim:
Appears in 1 contract
Conduct of Claims. 5.1 If 10.1 If:
10.1.1 any claim is made against the Buyer or any member of the Company becomes aware Buyer's Group; or
10.1.2 any matter or circumstance comes to the attention of the Buyer; in either case for which it appears to the Buyer that the Seller may be liable under the Non-Tax Warranties, and the Seller acknowledges that, subject to the alleged facts being demonstrated to be true, it has a liability to the Buyer (but not necessarily the quantum of the liability), the Buyer shall not make (and shall procure that no member of the Buyer's Group makes), except as may be required to protect its (or their) legal position, any admission of liability, conclude any agreement in relation to such liability or make any compromise with any person, body or authority in relation thereto without the consent of the Seller, which consent shall not be unreasonably delayed or withheld.
10.2 If the Seller acknowledges that, subject to the alleged facts being demonstrated to be true, it has a liability to the Buyer (but not necessarily the quantum of the liability) in respect of any Non-Tax Claim or claim referred to in paragraph 10.1 (including legal costs and expenses) the Buyer shall or shall procure that the relevant member of the Buyer's Group shall at the Seller's cost:
10.2.1 give, or procure that the relevant member of the Buyer's Group gives, the Seller's professional advisers copies of such correspondence and other documents of material significance relating to the claim referred to in paragraph 10.1 provided that correspondence and other documents of material significance having legal privilege shall not be subject to this requirement;
10.2.2 take such action as the Seller may reasonably request to avoid, dispute, resist, appeal, compromise or defend any claim which may result in a breach of a Non-Tax Warranty;
10.2.3 take such action as the Seller may reasonably request to conduct negotiations with the insurers in respect of any matter which it believes would or might may give rise to a Warranty Non-Tax Claim and to commence proceedings against such insurers; and
10.2.4 take such action as the Seller may reasonably request (taking no account of paragraph 1.2 for these purposes) and subject to the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers agreement of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction insurers of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses member of the Buyer and Buyer's Group, where appropriate) to commence and/or conduct any action, negotiations or proceedings in the Company in recovering that receipt name of the relevant member of the Buyer's Group.
10.3 The Seller may not exercise any right under this paragraph 10 if the matters alleged would, if proven, be reasonably likely to have a material adverse effect on the bona fide commercial interests or savinggoodwill of the Buyer.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Pharmchem Inc)
Conduct of Claims. 5.1 11.1 If a member of the Buyer or the Company Wider Buyer’s Group becomes aware of any matter or circumstance which it believes would gives rise to or might is reasonably likely to give rise to any claim, action or demand from a Warranty third party which results in or is reasonably likely to result in a Claim (taking no account of paragraph 1.2 for these purposesa “Third Party Claim”):
(a) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify as soon as reasonably practicable give written notice to and, to the Sellers of extent practicable, consult with the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) Warrantors in respect of the matter giving rise matter, circumstance, claim, action or demand stating on a without prejudice basis its nature in reasonable detail, (if practicable) the amount claimed, and the provisions of this Agreement which are alleged to have been or which may have been breached, and procure that Warranty Claimthe Warrantors and their advisers are given all reasonable facilities to investigate it;
(b) subject to the Buyer and/or the relevant member of the Wider Buyer’s Group being indemnified on demand for all liabilities, costs, damages and expenses which may be thereby incurred, the Buyer shall promptly notify the Sellers not, and shall procure that each member of the right.Wider Buyer’s Group shall not, admit liability in respect of the Third Party Claim, nor compromise, nor settle any proceedings in respect of the Third Party Claim, without the written consent of the Warrantors (such consent not to be unreasonably withheld or delayed);
5.3 The (c) the Buyer shall, and shall have conduct procure that each member of any and all litigation or negotiation provided that it shall continue the Wider Buyer’s Group shall, keep the Warrantors fully informed of the progress of the Third Party Claim and, to the extent practicable, consult with the Sellers Warrantors with respect to the matter in question.handling of the Third Party Claim;
5.4 If there is any dispute between the Sellers and (d) the Buyer shall, and shall procure that each member of the Wider Buyer’s Group shall, subject to the Buyer and/or the relevant member of the Wider Buyer’s Group being indemnified on demand for all liabilities, costs and expenses:
(i) at the written request of the Warrantors, take such action as the Warrantors reasonably request to whether liability avoid, dispute, resist, appeal, defend, compromise or settle the Third Party Claim (including, without limitation, making any counterclaims or other claims against third parties);
(ii) provide to the Warrantors and their advisers on reasonable prior notice reasonable access to premises and personnel and to relevant assets, documents and records within each member of the Buyer’s Group’s power or control for the purposes of investigating the matter or entitlement which allegedly gives rise to the Third Party Claim, except where to do so would breach or endanger any member of the Buyer’s Group’s legal privilege in any such documents or records or any obligations of confidentiality owed to a third party; and
(iii) permit the Warrantors to examine and take copies of the documents or records, and photograph the premises or assets, referred to in paragraph 11.1(d)(ii) above; and
(e) the Warrantors shall not be required to make any payment in respect of any third party claim should be admitted Claim until the Third Party Claim has been satisfied, settled, determined or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicablewithdrawn.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement
Conduct of Claims. 5.1 If any member of the Buyer or the Company IMS Group becomes aware of any matter which may result in a claim being brought against it believes would or might give rise by another person (a “Third Party Claim”) which may lead to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity apart from any third party (including under any policy of insurance) in relation to a Connect Ads Tax Claim), Aleph Cayman shall and shall procure that matter, then the Buyer shall promptly notify the Sellers each member of the right.IMS Group shall:
5.2 If (a) make no admission of liability or settle or compromise the Third Party Claim without the prior consent in writing of A15, such consent not to be unreasonably withheld or delayed, provided that it will take all reasonable action to mitigate any sum is paid by or on behalf loss that may arise in respect of any resulting Claim;
(b) for the duration of the Sellers in satisfaction of a Warranty Third Party Claim, provide A15 and its Agents with all information relevant to the Buyer or Third Party Claim (including the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party examine at A15’s cost and expense all relevant documents and records), and shall preserve all such information;
(c) consult with, give such information and assistance to and subject to being indemnified in relation to the same, take such action (including under the appointment of professional advisers) as A15 may reasonably request in order to avoid, defend, dispute, mitigate, appeal, settle or compromise the Third Party Claim provided that nothing in this paragraph 10 shall require any policy member of insurancethe IMS Group to take any action that would in the reasonable opinion of Aleph Cayman be materially detrimental to the goodwill or commercial interests of the IMS Group so long as A15 shall not be liable to Httpool, Aleph Cayman or IMS (as applicable) in respect of the matter giving rise such Claim to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason amount of such Claim is increased or, as applicable, not reduced as a result of the enforcement failure of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf member of the Sellers in satisfaction IMS Group to comply with any such reasonable request of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount RecoveredA15.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 1 contract
Samples: Deed of Adherence, Amendment and Restatement (Aleph Group, Inc)
Conduct of Claims. 5.1 If In the Buyer or event that any claim is made against the Seller and/or any Group Company becomes aware of under any matter which it believes would or might give rise to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) Transaction Agreement and the Buyer Purchaser and/or the Purchaser Nominee are/is included in or the Company has a right joined to make recovery or that claim indemnity from any third party then:
(including under any policy of insurancei) no admissions in relation to that matter, then the Buyer such third party claim shall promptly notify the Sellers of the right.
5.2 If any sum is paid be made by or on behalf of the Sellers in satisfaction Purchaser, the Purchaser Nominee or any other member of a Warranty Claim, the Purchaser’s Group and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be compromised, disposed of or settled without the written consent of the Seller;
(ii) the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or comprisedcontest such claim or liability (including, without limitation, making counterclaims or other than claims against third parties) in the name of and on behalf of the Purchaser or other member of the Purchaser’s Group concerned and to have the conduct of any related proceedings, negotiations or appeals and in that connection the Purchaser shall give or cause to be given instructions to such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between Seller’s instructions;
(iii) the Sellers Purchaser shall, and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being Purchaser shall procure any other members of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost Purchaser’s Group relevant to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion orclaim shall, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered give to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this scheduleSeller, the Sellers shall be deemed never subject to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less their being paid all reasonable costs and expenses of the Buyer and indemnified to their reasonable satisfaction against any liability or damages incurred thereby, all such information and assistance including access to premises and personnel, and the Company in recovering that receipt right to examine any assets, accounts, documents and records, as the Seller may reasonably request and which is not covered by confidentiality obligations or savingconstitutes attorney/client work product.
1. Xxxxxxxxx Essar Limited
2. Xxxxxxxxx Essar Mobile Services Limited
3. Xxxxxxxxx Telecom East Limited
Appears in 1 contract
Samples: Share Purchase Agreement (Hutchison Whampoa LTD /Wav)
Conduct of Claims. 5.1 If Subject to any obligations any of the Buyer or Sellers may have under any applicable policy of insurance, if any of the Company Sellers becomes aware that any claim has been made against any member of the CKX Group by a third party after Completion which is likely to result in any of the Sellers being entitled to make a claim against the Purchasers by virtue of a breach of any matter Purchasers’ Warranty the Sellers shall:
(a) give notice of such claim to the Purchasers as soon as reasonably practicable;
(b) not make any admission of liability, agreement or compromise with any person, body or authority in relation thereto without, where practicable, having first notified the Purchasers of its intention to do so (unless to so notify would be to the material detriment of the Sellers or any of them or any member of the Ingenious Group);
(c) take such action as the Purchasers shall reasonably request to avoid, dispute, resist, compromise, defend or mitigate any such claim (other than any claim the avoidance, dispute, resistance, compromise, defence or mitigation of which it believes would be likely to materially adversely affect the goodwill of the business of the relevant Seller or might give rise any claim which seeks or in respect of which there has been granted injunctive relief) provided that the Purchasers shall jointly and severally indemnify and hold harmless all the Sellers and members of the Ingenious Group against all Losses incurred by any of them arising from any action taken by any Seller at the request of the Purchasers pursuant to this paragraph 5; and
(d) consult as fully as is reasonably practicable with the Purchasers as regards the conduct of any proceedings arising out of such claim.
5.2 Notwithstanding the preceding provisions of this Schedule, if at any time any of the Purchasers pay to any of the Sellers an amount in respect of any claim and either of the Sellers or a Warranty Claim (taking no account member of paragraph 1.2 for these purposes) and the Buyer or the Company has a right Ingenious Group subsequently becomes entitled to make recovery or claim indemnity recover from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter facts, matters or circumstances giving rise to that Warranty Claim, the Buyer shall promptly notify claim then the Sellers shall or shall procure that any member of the right.
5.3 The Buyer Ingenious Group shall have conduct take all necessary steps to enforce such recovery unless to do so would, in the opinion of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect (acting reasonably) be to the matter in question.
5.4 material detriment any member of the Ingenious Group. If there is any dispute between the Sellers and and/or any member of the Buyer as Ingenious Group shall at any time recover any sum from a third party which is referable to whether liability the facts, matters or circumstances giving rise to any claim in respect of which either of the Purchasers have paid any third party claim should be admitted sum to any of the Sellers then provided that there are no outstanding claims or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed disputes between the Sellers Purchasers or either of them and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being any of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel them (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no there are any such determination is madedisputes or claims, following the final adjudication or settlement of them):
(a) if the amount paid by the Sellers and the Buyer Purchasers in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason respect of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either claim is more than the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Sum Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable immediately pay to the Buyer Purchasers the Sum Recovered; and
(b) if the amount paid by the Purchasers in respect of the Amount claim is less than or equal to the Sum Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" Sellers shall be immediately pay to the Purchasers an amount equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed paid by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.Purchasers;
Appears in 1 contract
Samples: Share Purchase Agreement (CKX, Inc.)
Conduct of Claims. 5.1 If the Buyer 16.4.1 Without prejudice to Clause 16.5, if any claim is received by or the Company becomes aware of any matter or circumstance comes to the attention of the Purchaser which it believes would or might could reasonably be anticipated to give rise to a Warranty Claim Liability for which the Seller may be liable under Clause 16.1 or 16.2:
(taking no account i) the Purchaser shall give Notice to the Seller as soon as reasonably practicable and in any event within 20 Business Days of paragraph 1.2 for these purposesbecoming aware of it;
(ii) the Purchaser shall give to the Seller reasonable access to all information relevant to any claim pursuant to Clause 16.1 and/or Clause 16.2 to enable the Seller to investigate thoroughly such claim and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) its potential Liability in respect of the such claim or matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers other than such access as would compromise any legal privilege or evidence of the rightPurchaser;
(iii) as regards any such claim the Purchaser shall take such action as the Seller may reasonably request in writing to appeal, avoid, compromise, defend, dispute or resist the claim and any adjudication in respect thereof; and
(iv) the Purchaser shall not admit, discharge, pay or settle any such claim without the prior written consent of the Seller (such consent not to be unreasonably withheld or delayed).
5.3 16.4.2 The Buyer action which the Seller may reasonably request under Clause 16.4.1(iii) shall have conduct include (without limitation) allowing the Seller in the name of the Purchaser to take complete control of the conduct, handling and settlement of any such claim, including the cost of litigation and all litigation of any appeal or negotiation any negotiations and the appointment of and the giving of instructions to legal representatives for that purpose, provided that it shall continue to the Seller shall:
(i) keep the Purchaser informed of all material steps proposed by it;
(ii) consult as fully as is reasonably practicable with the Sellers with respect Purchaser and take account of the Purchaser's reasonable representations;
(iii) not take any action in the name of the Purchaser as may adversely affect the goodwill or good name of the Purchaser or the value of the Purchaser's business; and
(iv) not admit, discharge, pay or settle any such claim without the prior written consent of the Purchaser (such consent not to the matter in questionbe unreasonably withheld or delayed).
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the 16.4.3 The provisions of this paragraph. Any such dispute Clause 16.4 shall be referred not apply to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, any claim insofar as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost it relates to the Sellerscarrying out of any Remedial Action. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers procedure for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine dealing with any such claim is set out in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicableClause 16.5.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 1 contract
Samples: Share Purchase Agreement (Crown Castle International Corp)
Conduct of Claims. 5.1 If the Buyer fact, matter, event or the Company becomes aware of any matter which it believes would or might circumstance that may give rise to a Warranty Deed Claim (taking no account of paragraph 1.2 for these purposes) and the Buyer relates to or the Company has is in connection with an actual or threatened claim, action or demand by or liability to a right to make recovery or claim indemnity from any third party (including under a third party claim) then:
(a) the Purchaser shall consult with the Seller prior to making any policy admission of insurance) liability, agreement or compromise with any person, body or authority in relation to that mattersuch matter and the Purchaser shall, then at the Buyer shall promptly notify the Sellers written request of the right.Seller:
5.2 If (i) if so requested, permit the Seller to participate in all matters relating to the third party claim including the appointment of lawyers and other professional advisers, the conduct of all proceedings and the making of any sum is paid by settlement or on behalf compromise of the Sellers in satisfaction third party claim but without prejudice to the rights of a Warranty Claim, the Purchaser or any member of the Purchaser Group to deal with such matter; and
(ii) allow the Seller reasonable access to information and to employees of the Buyer Purchaser or the Company has relevant Subsidiary of the Purchaser, or subsequently acquires a right any other relevant member of the Purchaser Group relating to make recovery such matters within the control of the Purchaser; provided that the Seller shall give reasonable notice of any access to information or claim indemnity from any Employees which may be requested and provided further that the provision of such access does not unreasonably interfere with the operation of the business of the Purchaser Group for the purpose of avoiding, contesting, disputing, resisting, appealing, compromising or defending the third party claim; and
(including under b) the Purchaser shall in any policy of insurance) event keep the Seller informed as to the steps which are being taken in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult connection with the Sellers with respect third party claim; provided, however, that the Purchaser shall not be required to do anything which could adversely impact the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability legal and/or litigation privilege in respect of any third party claim should be admitted or whether information relating to such matter; provided that claim should be settled or compromised, liability the failure to so inform the Seller shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with relieve the provisions Seller of this paragraph. Any such dispute shall be referred its obligations hereunder except to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered (and only to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may beextent that) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or savingSeller has been prejudiced thereby.
Appears in 1 contract
Conduct of Claims. 5.1 If an actual or threatened claim, action or demand by or liability to a Third Party (a "Third Party Claim") results or is likely to result in a claim against the Buyer Seller for breach of any of the Warranties or under any other provision of this Agreement or the Company becomes aware Tax Deed, then:
(a) the Purchaser shall not make, and shall procure that no other member of the Purchaser's Group nor any matter which it believes would or might give rise to a Warranty Claim (taking no account member of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from Astra Tech Group shall make, any third party (including under any policy admission of insurance) liability in relation to that matterthe Third Party Claim nor compromise, then dispose of or settle the Buyer shall promptly notify Third Party Claim without the Sellers prior written consent of the right.Seller (not to be unreasonably withheld or delayed);
5.2 If (b) the Purchaser shall, and shall procure that all other members of the Purchaser's Group and each member of the Astra Tech Group shall, at the written request of the Seller:
(i) take such action as the Seller may reasonably require to avoid, contest, dispute, resist, appeal, compromise or defend the Third Party Claim (including making counter claims and exercising all rights of set off against third parties) and keep the Seller informed as to the steps which are being taken in connection with the Third Party Claim;
(ii) if so requested, permit the Seller or any sum is paid by or other member of the Seller’s Group in the name of and on behalf of the Sellers in satisfaction of a Warranty ClaimPurchaser, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect other member of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers Purchaser's Group or a member of the right.
5.3 The Buyer shall Astra Tech Group to take control and have conduct of all matters relating to the Third Party Claim (including the appointment of lawyers and other professional advisers, the conduct of all proceedings and the making of any settlement or compromise of the Third Party Claim), provided that:
(A) the Seller shall act reasonably and in good faith and shall keep the Purchaser informed as to the steps which are being taken in connection with the Third Party Claim, provide the Purchaser with copies of all litigation correspondence and documentation relating to the Third Party Claim and afford the Purchaser a reasonable time to review and comment on such correspondence and documentation prior to circulation (and shall give due consideration to the reasonable comments of the Purchaser to such correspondence and documentation), provided in each case that in so doing, neither the Seller nor any other member of the Seller’s Group would lose or negotiation waive privilege in such documents; and
(B) if the Purchaser objects to any proposed settlement or compromise on a basis which is reasonable, then the Seller shall refrain from entering into any such settlement or compromise and, if requested to do so by the Purchaser, shall hand control of the Third Party Claim over to the Purchaser, provided that it in each case the liability of the Seller for any claim resulting from that Third Party Claim shall continue not exceed the amount for which the Seller had agreed to consult with the Sellers with respect settle or compromise,
(iii) render or cause to be rendered to the matter in question.
5.4 If there is Seller or any dispute between other member of the Sellers Seller’s Group such assistance as it may reasonably require (including providing access to information and to employees of the Buyer as to whether liability in respect Purchaser, any other relevant member of the Purchaser's Group and any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with member of the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed Astra Tech Group) for the purpose by either of avoiding, contesting, disputing, resisting, appealing, compromising or defending the Sellers or Third Party Claim, provided that the BuyerSeller shall indemnify the Purchaser (for itself, by the President for the time being each other member of the Law Society of England Purchaser's Group and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which each member of the courses Astra Tech Group) against all Losses reasonably incurred by any of conduct proposed by the Buyer them in complying with their respective obligations under paragraphs 8(b)(i), (ii) and by the Sellers is most likely (iii), but only to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or Purchaser has a valid claim against the Company receives any sum or Seller as a result of such Third Party Claim; and
(c) other benefit by reason of than in circumstances where the enforcement of any rights such Seller has taken control pursuant to paragraph 8(b)(ii), the Purchaser shall keep the Seller informed as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on actual or before proposed steps which are being taken in connection with a Third Party Claim and shall provide the date falling five Business Days after the date on which that receipt or saving is made. For the purposes Seller with copies of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable all correspondence and documentation relating to the Buyer in respect of the Amount RecoveredThird Party Claim.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 1 contract
Samples: Share Purchase Agreement (Dentsply International Inc /De/)
Conduct of Claims. 5.1 If an actual or threatened claim, action or demand by or liability to a Third Party (a "Third Party Claim") results or is likely to result in a claim against the Buyer Seller for breach of any of the Warranties or under any other provision of this Agreement or the Company becomes aware Tax Deed, then:
(a) the Purchaser shall not make, and shall procure that no other member of the Purchaser's Group nor any matter which it believes would or might give rise to a Warranty Claim (taking no account member of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from Astra Tech Group shall make, any third party (including under any policy admission of insurance) liability in relation to that matterthe Third Party Claim nor compromise, then dispose of or settle the Buyer shall promptly notify Third Party Claim without the Sellers prior written consent of the right.Seller (not to be unreasonably withheld or delayed);
5.2 If (b) the Purchaser shall, and shall procure that all other members of the Purchaser's Group and each member of the Astra Tech Group shall, at the written request of the Seller:
(i) take such action as the Seller may reasonably require to avoid, contest, dispute, resist, appeal, compromise or defend the Third Party Claim (including making counter claims and exercising all rights of set off against third parties) and keep the Seller informed as to the steps which are being taken in connection with the Third Party Claim;
(ii) if so requested, permit the Seller or any sum is paid by or other member of the Seller’s Group in the name of and on behalf of the Sellers in satisfaction of a Warranty ClaimPurchaser, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect other member of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers Purchaser's Group or a member of the right.
5.3 The Buyer shall Astra Tech Group to take control and have conduct of all matters relating to the Third Party Claim (including the appointment of lawyers and other professional advisers, the conduct of all proceedings and the making of any settlement or compromise of the Third Party Claim), provided that:
(A) the Seller shall act reasonably and in good faith and shall keep the Purchaser informed as to the steps which are being taken in connection with the Third Party Claim, provide the Purchaser with copies of all litigation correspondence and documentation relating to the Third Party Claim and afford the Purchaser a reasonable time to review and comment on such correspondence and documentation prior to circulation (and shall give due consideration to the reasonable comments of the Purchaser to such correspondence and documentation), provided in each case that in so doing, neither the Seller nor any other member of the Seller’s Group would lose or negotiation waive privilege in such documents; and
(B) if the Purchaser objects to any proposed settlement or compromise on a basis which is reasonable, then the Seller shall refrain from entering into any such settlement or compromise and, if requested to do so by the Purchaser, shall hand control of the Third Party Claim over to the Purchaser, provided that it in each case the liability of the Seller for any claim resulting from that Third Party Claim shall continue not exceed the amount for which the Seller had agreed to consult with the Sellers with respect settle or compromise,
(iii) render or cause to be rendered to the matter in question.
5.4 If there is Seller or any dispute between other member of the Sellers Seller’s Group such assistance as it may reasonably require (including providing access to information and to employees of the Buyer as to whether liability in respect Purchaser, any other relevant member of the Purchaser's Group and any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with member of the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed Astra Tech Group) for the purpose by either of avoiding, contesting, disputing, resisting, appealing, compromising or defending the Sellers or Third Party Claim, 57 provided that the BuyerSeller shall indemnify the Purchaser (for itself, by the President for the time being each other member of the Law Society of England Purchaser's Group and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which each member of the courses Astra Tech Group) against all Losses reasonably incurred by any of conduct proposed by the Buyer them in complying with their respective obligations under paragraphs 8(b)(i), (ii) and by the Sellers is most likely (iii), but only to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or Purchaser has a valid claim against the Company receives any sum or Seller as a result of such Third Party Claim; and
(c) other benefit by reason of than in circumstances where the enforcement of any rights such Seller has taken control pursuant to paragraph 8(b)(ii), the Purchaser shall keep the Seller informed as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on actual or before proposed steps which are being taken in connection with a Third Party Claim and shall provide the date falling five Business Days after the date on which that receipt or saving is made. For the purposes Seller with copies of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable all correspondence and documentation relating to the Buyer in respect of the Amount RecoveredThird Party Claim.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 1 contract
Samples: Acquisition Agreement
Conduct of Claims. 5.1 11.1 If a member of the Buyer or the Company Wider Buyer’s Group becomes aware of any matter or circumstance which it believes would gives rise to or might is reasonably likely to give rise to any claim, action or demand from a Warranty third party which results in or is reasonably likely to result in a Claim (taking no account a “Third Party Claim”):
(a) the Buyer shall as soon as reasonably practicable give written notice to and, to the extent practicable, consult with the Warrantors in respect of paragraph 1.2 for these purposesthe matter, circumstance, claim, action or demand stating on a without prejudice basis its nature in reasonable detail, (if practicable) the amount claimed, and the provisions of this Agreement which are alleged to have been or which may have been breached, and procure that the Warrantors and their advisers are given all reasonable facilities to investigate it;
(b) subject to the Buyer and/or the relevant member of the Wider Buyer’s Group being indemnified on demand for all liabilities, costs, damages and expenses which may be thereby incurred, the Buyer shall not, and shall procure that each member of the Wider Buyer’s Group shall not, admit liability in respect of the Third Party Claim, nor compromise, nor settle any proceedings in respect of the Third Party Claim, without the written consent of the Warrantors (such consent not to be unreasonably withheld or delayed);
(c) the Company has Buyer shall, and shall procure that each member of the Wider Buyer’s Group shall, keep the Warrantors fully informed of the progress of the Third Party Claim and, to the extent practicable, consult with the Warrantors with respect to the handling of the Third Party Claim;
(d) the Buyer shall, and shall procure that each member of the Wider Buyer’s Group shall, subject to the Buyer and/or the relevant member of the Wider Buyer’s Group being indemnified on demand for all liabilities, costs and expenses:
(i) at the written request of the Warrantors, take such action as the Warrantors reasonably request to avoid, dispute, resist, appeal, defend, compromise or settle the Third Party Claim (including, without limitation, making any counterclaims or other claims against third parties);
(ii) provide to the Warrantors and their advisers on reasonable prior notice reasonable access to premises and personnel and to relevant assets, documents and records within each member of the Buyer’s Group’s power or control for the purposes of investigating the matter or entitlement which allegedly gives rise to the Third Party Claim, except where to do so would breach or endanger any member of the Buyer’s Group’s legal privilege in any such documents or records or any obligations of confidentiality owed to a right third party; and
(iii) permit the Warrantors to examine and take copies of the documents or records, and photograph the premises or assets, referred to in paragraph 11.1(d)(ii) above; and
(e) the Warrantors shall not be required to make recovery any payment in respect of any Claim until the Third Party Claim has been satisfied, settled, determined or claim indemnity withdrawn.
11.2 If, in respect of any Claim or potential Claim, a member of the Wider Buyer’s Group has any right of action, indemnity, contribution or entitlement to recover (whether by payment, discount, credit, relief or otherwise) from or against any third party (including any insurer under any policy an insurance policy) (a “Right of insurance) in relation to that matterRecovery”), then the Buyer shall promptly notify the Sellers and shall procure that each member of the right.Wider Buyer’s Group shall:
5.2 If any sum is paid by (a) take all reasonable steps to enforce the Right of Recovery;
(b) make no compromise, disposition or on behalf settlement of the Sellers in satisfaction Right of a Warranty Claim, Recovery (and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy no admission of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any related counterclaim) without the written consent of the Warrantors (such consent not to be unreasonably withheld or delayed); and
(c) subject to the Buyer and/or the relevant member of the Wider Buyer’s Group being indemnified on demand for all reasonable costs and expenses:
(i) at the written request of the Warrantors take such action as the Warrantors reasonably request to pursue, appeal, compromise or settle the Right of Recovery (including, without limitation, defending any counterclaims or other claims by third party claim should be admitted parties) and any related adjudication or whether that claim should be settled or compromised, liability shall not be admittedproceedings, and that claim shall not be settled to conduct related matters including negotiations or comprised, other than in accordance appeals; and
(ii) comply with the provisions of this paragraph. Any such dispute paragraphs 11.1(d)(ii), 11.1(d)(iii) and 11.1(e) as the Warrantors deem necessary as if the words “Right of Recovery” were substituted for “Third Party Claim”.
11.3 The Buyer shall, and shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being procure that each member of the Law Society of England Wider Buyer’s Group shall, use its reasonable endeavours to preserve all documents, records, correspondence, accounts, electronically stored data and Wales on the application of either the Sellers or the Buyer. Any individual other information relevant to whom a dispute is so referred shall be instructed in writing matter which may give rise to give a written opinionClaim, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty a Third Party Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf a Right of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount RecoveredRecovery.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (Encore Capital Group Inc)
Conduct of Claims. 5.1 7.1 If the Buyer or the Company Purchaser becomes aware of any a matter which it believes constitutes or which would or might give rise to a Warranty Claim Claim:
(taking no account of paragraph 1.2 for these purposesa) and the Buyer or Purchaser shall as soon as reasonably practicable give notice to the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect Contributing Parties of the matter giving rise to that Warranty Claim, the Buyer and shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers Contributing Parties with respect to the matter provided that no delay or failure in question.
5.4 If there is any dispute between so notifying the Sellers and Contributing Parties shall relieve the Buyer as to whether liability in respect Contributing Parties of any third party claim should be admitted liability or whether that claim should be settled obligation hereunder except to the extent of any damage or compromisedliability caused by, liability shall not be admittedincreased, exacerbated or arising out of such failure;
(b) the Purchaser shall, and shall ensure that claim shall not be settled each member of the Purchaser Group will, provide to the Contributing Parties and their advisers reasonable access to premises and personnel during business hours and to relevant assets, documents and records within the power or comprised, other than in accordance with control of each member of the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed Purchaser Group for the purpose by either purposes of investigating the Sellers or matter and enabling the Buyer, by Contributing Parties to take the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are action referred to in paragraphs 5.1 paragraph (d);
(c) the Contributing Parties (at their cost, and subject to completing an undertaking of confidentiality in a form acceptable to the Purchaser, acting reasonably), may take copies the documents or 5.2records, then either and photograph the Sellers' liability premises or assets, referred to in paragraph (b);
(d) the Purchaser shall, and shall ensure that each member of the Purchaser Group will take any action and institute any proceedings, and give any information and assistance, as the Contributing Parties may reasonably request to:
(i) dispute, resist, appeal, compromise, defend, remedy or mitigate the matter;
(ii) enforce against a person (other than a Management Party) the rights of a member of the Purchaser Group in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf matter; or
(iii) allow the Contributing Parties the exclusive conduct of the Sellers proceedings, and in satisfaction of a Warranty Claim, then each case on the Buyer basis that the Contributing Parties shall pay indemnify the Amount Recovered to the Sellers Purchaser on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less demand against all reasonable costs and expenses incurred as a result of a request or nomination by the Contributing Parties;
(e) the Purchaser shall not, and shall ensure that no member of the Buyer and Purchaser Group will, admit liability in respect of, or compromise or settle, the Company matter without the prior written consent of the Contributing Parties; and
(f) the Contributing Parties shall not admit liability in recovering that receipt respect of, or savingcompromise or settle, the matter without the prior written consent of the Purchaser.
Appears in 1 contract
Conduct of Claims. 5.1 If the Buyer or the Company becomes aware The provisions of this paragraph 7 shall apply to any matter which it believes would may give rise to or might arises by virtue of a claim under paragraph 3 or any claim for breach of the Environmental Warranties.
7.1 Where the Vendor or any member of the Vendor's Group has or may have a claim against a third party in relation to a matter which has given or may give rise to a Warranty Claim (taking no account claim under paragraph 3 or any claim for breach of paragraph 1.2 for these purposes) the Environmental Warranties, the Purchaser and any relevant member of the Buyer or Purchaser's Group shall afford the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) Vendor all such assistance as may be reasonable in relation to its conduct of such claim (subject to any duties of confidentiality owed to third parties and to any right to maintain legal privilege and without prejudice to any claim asserted by the Purchaser under paragraph 3), including access to and copies of any reports, correspondence, documents or other information in the possession of the Purchaser or any 254 member of the Purchaser's group of companies provided that matterthe Purchaser and any relevant member of the Purchaser's Group is indemnified to its reasonable satisfaction against all reasonable costs, then expenses and liabilities incurred as a result of so doing.
7.2 Without prejudice to the Buyer validity of any claim or alleged claim made by the Purchaser under paragraph 3 or any claim for breach of the Environmental Warranties, the Purchaser shall promptly provide such reports, documents, correspondence, information, assistance (including access to employees, agents or contractors of the Purchaser's Group) and facilities as are potentially relevant to any such claim and are in its possession (or in the possession of the Purchaser's Group) as the Vendor may reasonably request (subject to compliance with any duties of confidentiality owed to third parties and to the right to maintain legal privilege) including reasonable access to any relevant part of any Property or so far as reasonably practicable to any adjacent or affected property. The Vendor receiving such information etc. shall without limitation as to time keep all such information confidential except for disclosure in defending or prosecuting any Environmental Proceedings or any claim or alleged claim or argument under paragraph 3 or any claim for breach of the Environmental Warranties or as otherwise required by law.
7.3 If a claim under paragraph 3 or any claim for breach of the Environmental Warranties arises or may arise as a result of or in connection with any Environmental Proceedings to which the Purchaser or any member of the Purchaser's Group is or is likely to become a party or where the Purchaser or a member of the Purchaser's Group is the subject of such Environmental Proceedings the Purchaser shall promptly notify the Sellers Vendor in writing of such claim or potential claim and the actual or anticipated Environmental Proceedings as soon as it becomes aware of such claim or Proceedings and the following provisions shall apply:
(i) the Vendor shall have the right at any time to assume primary responsibility for and control over the conduct of all or any part of such Environmental Proceedings. Unless and until the Vendor assumes conduct by notice in writing to the Purchaser the Purchaser or any member of the right.Purchaser's Group shall have conduct of any such Environmental Proceedings; 255
5.2 If (ii) while the Purchaser or any sum is paid member of the Purchaser's Group has conduct of any such Environmental Proceedings, it shall be entitled to avoid, dispute, deny, defend, resist, appeal, compromise or contest such Environmental Proceedings (including, without limitation, making counterclaims or other claims against third parties in its own name) and to have the conduct of such Environmental Proceedings, and any related Remedial Action, negotiations or appeals but no admission of liability shall be made by or on behalf of the Sellers in satisfaction Purchaser (or any member of a Warranty Claimthe Purchaser's Group), and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be compromised, disposed of or settled without the consent of the Vendor (such consent not to be unreasonably withheld or compriseddelayed);
(iii) if the Vendor assumes conduct of the Environmental Proceedings, it shall be entitled to take any action to avoid, dispute, deny, defend, resist, appeal compromise or contest such Environmental Proceedings in the name of the Purchaser or any member of the Purchaser's Group provided that the Vendor shall consult as fully as is reasonably practicable with the Purchaser (or the relevant member of the Purchaser's Group) in respect thereof and shall not take such action in its name as may materially adversely affect the value of any Property or the goodwill or good name of the Purchaser (or the relevant member of the Purchaser's Group) unless the Purchaser (or the relevant member of the Purchasers' Group) consents thereto (such consent not to be unreasonably withheld or delayed) and the Vendor shall consult as fully as is reasonably practicable with the Purchaser (or the relevant member of the Purchaser's Group) as regards any negotiations and/or appeals arising out of such Environmental Proceedings.
7.4 The party having conduct of any Environmental Proceedings (the "Conduct Party") shall ensure that:
(i) the other than party shall be informed promptly of any information, and shall be provided with copies of any correspondence or documents held by the Conduct Party which is material to the Environmental Proceedings (except to the extent this is impossible without waiving privilege in respect thereof);
(ii) the other party shall be provided with advance notice of any proposal by the Conduct Party (or any member of its group of companies) or any third party to undertake Remedial Action provided that this obligation shall not apply in case of emergency, that is where there is an imminent and substantial risk of serious harm to human health or to the Environment; and
(iii) Each party shall comply with the reasonable requests of the other for arrangements or procedures to maintain confidentiality or legal privilege in relation to any matters arising out of or relating to any Environmental Proceedings.
7.5 If any amount is recovered in relation to any Environmental Loss or claim under the Environmental Warranties pursuant to paragraphs 7.1 and/or 7.3 above, after first deducting any costs and expenses incurred in relation to such recovery, the balance shall be divided between the Vendor and the Purchaser in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between Agreed Proportion in which the Sellers and the Buyer or, in default of agreement on Environmental Loss or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability loss arising in relation to such Warranty Claim or potential Warranty Claim shall be reduced the breach of Environmental Warranties was borne by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recoveredthem.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 1 contract
Samples: Sale and Purchase Agreement (General Cable Corp /De/)
Conduct of Claims. 5.1 If Subject to any obligations any of the Buyer or Sellers may have under any applicable policy of insurance, if any of the Company Sellers becomes aware that any claim has been made against any member of the Jump Group by a third party after Completion which is likely to result in any of the Sellers being entitled to make a claim against the Purchaser by virtue of a breach of any matter Purchaser’s Warranty the Sellers shall:
(a) give notice of such claim to the Purchaser as soon as reasonably practicable, but not later than 10 Business Days after becoming aware of such Claim, specifying in reasonable detail to the extent then available, the nature of the potential liability and so far as practicable, the likely amount of such third party claim;
(b) not make any admission of liability, agreement or compromise with any person, body or authority in relation thereto without, where practicable, having first notified the Purchaser of its intention to do so (unless to so notify would be to the material detriment of the Sellers);
(c) take such action as the Purchaser shall reasonably request to avoid, dispute, resist, compromise, defend or mitigate any such claim (other than any claim the avoidance, dispute, resistance, compromise, defence or mitigation of which it believes would be likely to materially adversely affect the goodwill of the business of the relevant Seller or might give rise any claim which seeks or in respect of which there has been granted injunctive relief) provided that the Purchaser shall hold harmless all the Sellers against all Losses incurred by any of them arising from any action taken by any Seller at the request of the Purchaser pursuant to a Warranty Claim this paragraph 5; and
(taking no account d) consult as fully as is reasonably practicable with the Purchaser as regards the conduct of paragraph 1.2 for these purposes) any proceedings arising out of such claim and keep the Buyer or Purchaser reasonably informed of the Company has a right progress of such third party claim.
5.2 Notwithstanding the preceding provisions of this Schedule, if at any time the Purchaser pays to make recovery or any of the Sellers an amount in respect of any claim indemnity and either of the Sellers subsequently becomes entitled to recover from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter facts, matters or circumstances giving rise to that Warranty Claim, the Buyer shall promptly notify claim then the Sellers of the right.
5.3 The Buyer shall have conduct of any and take all litigation or negotiation provided that it shall continue necessary steps to consult with enforce such recovery. If the Sellers with respect shall at any time recover any sum from a third party which is referable to the matter in question.
5.4 If there is facts, matters or circumstances giving rise to any dispute between the Sellers and the Buyer as to whether liability claim in respect of which the Purchaser has paid any third party claim should be admitted sum to any of the Sellers then provided that there are no outstanding claims or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed disputes between the Sellers Purchaser and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being any of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel them (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no there are any such determination is madedisputes or claims, following the final adjudication or settlement of them):
(a) if the amount paid by the Sellers and the Buyer Purchaser in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason respect of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either claim is more than the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Sum Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable immediately pay to the Buyer Purchaser the Sum Recovered; and
(b) if the amount paid by the Purchaser in respect of the Amount claim is less than or equal to the Sum Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" Sellers shall be immediately pay to the Purchaser an amount equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed paid by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.Purchaser;
Appears in 1 contract
Conduct of Claims. 5.1 If 4.1 As soon as reasonably practicable after the Buyer or the Company Purchaser becomes aware of any claim made or threatened which does or may result in a claim under the Warranties (other than the Tax Warranties) or the Indemnity in clause 6.5(i), the Purchaser will notify the Seller of that matter (a “Relevant Matter”) (indicating the nature of the allegations made). If the Seller is notified of a Relevant Matter made or threatened to be made against the Purchaser or a Company (each an “Indemnified Party”), the Seller shall provide the Indemnified Party with such information and assistance in relation to the matter giving rise such Relevant Matter as it may reasonably require provided that the Indemnified Party shall and shall procure that its Affiliates and professional advisers shall keep confidential all information so provided. If the Seller is restricted from providing such information due to confidentiality obligations with a third party, the Seller shall use all reasonable endeavours to procure the release of such obligation for the purposes of providing the Purchaser or a Company with the required information.
4.2 Subject to the Purchaser and the relevant Company being indemnified and secured to the Purchaser’s reasonable satisfaction, the Purchaser shall or shall procure that the Company shall:
4.2.1 at reasonable intervals keep the Seller informed of the progress of the Relevant Matter and where the Seller reasonably considers its involvement might lead to a more beneficial settlement of the Relevant Matter for the Purchaser and the Company, involve the Seller in discussions, strategy meetings and contact with the party bringing or threatening the Relevant Matter (without cost to either the Purchaser or the Company);
4.2.2 (at the cost of the Seller) provide the Seller with copies of such documentation relating to the Relevant Matter as the Seller may reasonably request; and
4.2.3 maintain reasonable consultation with the Seller regarding the Relevant Matter and take its views, insofar as they are reasonable, into account.
4.3 Subject to paragraph 4.4, in relation to a claim made or threatened against the Purchaser or a Company that will or may give rise to liability under any Indemnity, or any other such claim in respect of which it believes would the Seller undertakes to indemnify and hold harmless the Purchaser as if such claim was the subject of an Indemnity (each a “Third Party Claim”), the Purchaser shall, subject to the Purchaser and the relevant Company being indemnified and secured to the Purchaser’s reasonable satisfaction, and subject to paragraph 4.3.3 below:
4.3.1 take such action as the Seller may reasonably request to:
(a) avoid, dispute or might defend; or
(b) appeal or compromise, the Third Party Claim;
4.3.2 permit the Seller reasonable access at reasonable times to the employees and premises of the Purchaser to ask reasonable questions provided that the Seller shall, and shall procure that its professional advisers shall, keep confidential all matters so examined, and provided that the Purchaser may require the Seller to pay a reasonable fee for the time of the employees of the Purchaser spent in connection with such examination;
4.3.3 For the purpose of this clause 4.3:
(i) the appointment of solicitors or other professional advisers shall be subject to the approval of the Purchaser such approval not to be withheld or delayed unreasonably;
(ii) the Purchaser shall be kept fully informed of all relevant matters and shall be entitled to see copies of all correspondence relating to any such action, negotiations or proceedings; and
(iii) the Seller shall not make any settlement of or compromise the Third Party Claim nor agree any matter in the conduct of any such action, negotiations or proceedings which is likely to affect the amount of the claim or the future liability of the Purchaser without the prior written approval of the Purchaser, such approval not to be withheld or delayed unreasonably.
4.4 The provisions of paragraph 4.3 shall apply to any claim made or threatened against the Purchaser or a Company that will or may give rise to liability under the Indemnity in clause 6.5(i) (a “L/B Claim”), in lieu of the provisions of paragraph 4.2, if the Seller reasonably considers that such L/B Claim will give rise to a Warranty Claim (taking no account of paragraph 1.2 for these purposes) and liability on the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers part of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty ClaimSeller notwithstanding paragraph 2.1 above, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it in exercising its conduct rights under paragraph 4.3 the Seller shall continue use reasonable endeavours to consult with mitigate the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether relevant Company’s liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with such L/B Claim.
4.5 Pending the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses Seller acquiring rights of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of a L/B Claim pursuant to paragraph 5.5 of this schedule4.4, the "Amount Recovered" Purchaser shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of and shall procure that the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company shall) use reasonable endeavours to mitigate such Company’s liability in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or savingsuch L/B Claim.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Esterline Technologies Corp)
Conduct of Claims. 5.1 If the Buyer or any dispute occurs between the Company becomes aware and a Shareholder or any member of such Shareholder's Group including, without limitation, any matter which it believes would dispute arising out of or might give rise to a Warranty Claim in connection with any agreement entered into before, on or after the date of this Agreement or this Agreement, then (taking no account of paragraph 1.2 for these purposes) and the Buyer or the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) but only in relation to matters concerning such dispute):
7.6.1 such Shareholder shall not be allowed to exercise its voting rights in the Company; and
7.6.2 the quorum requirements for all or that matterpart of meetings of Shareholders, then the Buyer shall promptly notify the Sellers directors or any committee of directors of the rightcompany at which such dispute is to be discussed or in relation to which resolutions are to be passed shall be varied accordingly so as to permit the other Shareholders to exercise control over the Company for all purposes relating to the dispute concerned. 8 RELEASE ON TRANSFER OF SHARES TO THIRD PARTY
8.1 Upon any transfer of all Shares by a Transferor being accepted for registration in accordance with the Articles, this Agreement or otherwise by agreement between the Shareholders, the Transferor shall:
8.1.1 resign or procure the resignation of its nominees as directors of the Company in either case acknowledging that they have no claim against the Company; and
8.1.2 unless the transferee of such shares (in this clause 8 a "Transferee") is a member of the Transferor's Group, the Transferor and each member of the Transferor's Group shall be entitled to be repaid any indebtedness to it of the Company within twenty (20) Working Days of the registration of such transfer subject, however, where such indebtedness arises from a loan by the Transferor (or any member of the Transferor's Group) to fund the working capital of the Company to a loan in the amount of such indebtedness being made on the same terms to the Company by the Transferee; and
8.1.3 unless the Transferee is a member of the Transferor's Group, the Transferor and each member of the Transferor's Group shall be entitled, where possible and appropriate, to be released from any guarantees given by it in relation to any activities undertaken by the Company (subject in all cases to the liability under such guarantees being assumed by the Transferee) failing which the other Shareholder and the Transferee shall (a) jointly use all reasonable endeavors to obtain the release of the Transferor (or member of the Transferor's Group) from such guarantees and (b) pending the obtaining of such release, jointly and severally indemnify and hold harmless the Transferor in respect of its continuing liability under such guarantees.
5.2 If 8.2 Subject to the performance of any sum is paid by or on behalf obligations (including obligations of confidentiality) remaining to be performed after the event, and to any rights of the Sellers Parties in satisfaction respect of a Warranty Claimantecedent breaches or non-observance of this Agreement, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) this Agreement shall terminate in respect of the matter giving rise Company as between (1) the Transferor and (2) the other Parties upon the Transferor ceasing to that Warranty Claim, be a holder of all its Shares in the Buyer shall promptly notify Company so as to release the Sellers Transferor from any further obligation or liability to any of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (Parties who shall act each likewise be released from any further liability or obligation towards such Transferor, except as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine provided in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicableclause 8.1.3.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less all reasonable costs and expenses of the Buyer and the Company in recovering that receipt or saving.
Appears in 1 contract
Samples: Shareholder Agreement
Conduct of Claims. 5.1 If 3.1 Without prejudice to the Buyer validity of the claim or the Company alleged claim in question, if the Purchaser becomes aware of any matter which it believes would or might that may give rise to a Warranty Claim (taking no account claim against the Vendor under this Agreement notice of paragraph 1.2 that fact shall be given as soon as possible to the Vendor.
3.2 Without prejudice to the validity of the claim or alleged claim in question, the Purchaser shall allow the Vendor and its accountants and professional advisers to investigate the matter or circumstance alleged to give rise to such claim and whether and to what extent any amount is payable in respect of such claim and for these purposes) such purpose the Purchaser shall give, subject to its being paid all reasonable costs and expenses, all such relevant information and reasonable assistance, including access to premises and personnel on prior reasonable notice and without disruption of the Purchaser's Business, and the Buyer right to examine and copy or photograph any non proprietary, non confidential assets, accounts, documents and records, as the Vendor or its accountants or professional advisers may reasonably request.
3.3 Without prejudice to the validity of the claim or the Company has alleged claim in question, if the claim in question is a right result of or in connection with a claim by or liability to make recovery or claim indemnity from any a third party (including under any policy then provided the Vendor conducts the matter reasonably:
3.3.1 no admission of insurance) in relation to that matter, then the Buyer liability shall promptly notify the Sellers of the right.
5.2 If any sum is paid be made by or on behalf of the Sellers in satisfaction of a Warranty Claim, Purchaser and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect of the matter giving rise to that Warranty Claim, the Buyer shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers with respect to the matter in question.
5.4 If there is any dispute between the Sellers and the Buyer as to whether liability in respect of any third party claim should be admitted or whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be compromised, disposed of or settled or comprised, other than in accordance with without the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being consent of the Law Society of England and Wales on Vendor which shall not be unreasonably withheld;
3.3.2 the application of either Vendor shall, subject to the Sellers Vendor indemnifying the Purchaser to its reasonable satisfaction against any increased losses the Purchaser may suffer as a result, be entitled at its own expense to take such action as it shall reasonably deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinioncontest such claim or liability (including, as soon as is reasonably practicablewithout limitation, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result making counterclaims or other claims against third parties) in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision name of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2, then either the Sellers' liability in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, then the Buyer shall pay the Amount Recovered to the Sellers on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never Purchaser and to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement conduct of any rights such as are referred related proceedings, negotiations or appeals; -------------------------------------------------------------------------------- 43
3.3.3 the Purchaser will give, subject to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less being paid all reasonable costs and expenses of the Buyer expenses, all such information and assistance, including access to premises and personnel, and the Company in recovering that receipt right to examine and copy or savingphotograph any assets, accounts, documents and records, for the purpose of avoiding, disputing, denying, defending, resisting, appealing, compromising or contesting any such claim or liability as the Vendor or its professional advisers reasonably request. The Vendor agrees to keep all such information confidential and only to use it for such purpose.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Hawker Pacific Aerospace)
Conduct of Claims. 5.1 7.1 If the Buyer or the Company Purchaser becomes aware of any a matter which it believes constitutes or which would or might give rise to a Warranty Claim Claim:
(taking no account of paragraph 1.2 for these purposesa) and the Buyer or Purchaser shall as soon as reasonably practicable give notice to the Company has a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in relation to that matter, then the Buyer shall promptly notify the Sellers of the right.
5.2 If any sum is paid by or on behalf of the Sellers in satisfaction of a Warranty Claim, and the Buyer or the Company has or subsequently acquires a right to make recovery or claim indemnity from any third party (including under any policy of insurance) in respect Management Parties of the matter giving rise to that Warranty Claim, the Buyer and shall promptly notify the Sellers of the right.
5.3 The Buyer shall have conduct of any and all litigation or negotiation provided that it shall continue to consult with the Sellers Management Parties with respect to the matter provided that no delay or failure in question.
5.4 If there is any dispute between so notifying the Sellers and Management Parties shall relieve the Buyer as to whether liability in respect Management Parties of any third party claim should be admitted liability or whether that claim should be settled obligation hereunder except to the extent of any damage or compromisedliability caused by, liability shall not be admittedincreased, exacerbated or arising out of such failure;
(b) the Purchaser shall, and shall ensure that claim shall not be settled each member of the Purchaser Group will, provide to the Management Parties and their advisers reasonable access to premises and personnel during business hours and to relevant assets, documents and records within the power or comprised, other than in accordance with control of each member of the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Sellers and the Buyer or, in default of agreement on or before the date falling [**] after the date on which an individual is first proposed Purchaser Group for the purpose by either purposes of investigating the Sellers or matter and enabling the Buyer, by Management Parties to take the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made, by the Sellers and the Buyer in equal shares. The parties shall then implement counsel's decision as soon as is reasonably practicable.
5.5 To the extent that the Buyer or the Company receives any sum or other benefit by reason of the enforcement of any rights such as are action referred to in paragraphs 5.1 paragraph (d);
(c) the Management Parties (at their cost, and subject to completing an undertaking of confidentiality in a form acceptable to the Purchaser, acting reasonably), may take copies the documents or 5.2records, then either and photograph the Sellers' liability premises or assets, referred to in paragraph (b);
(d) the Purchaser shall, and shall ensure that each member of the Purchaser Group will take any action and institute any proceedings, and give any information and assistance, as the Management Parties may reasonably request to:
(i) dispute, resist, appeal, compromise, defend, remedy or mitigate the matter;
(ii) enforce against a person (other than a Management Party) the rights of a member of the Purchaser Group in relation to such Warranty Claim or potential Warranty Claim shall be reduced by the Amount Recovered, or if any sum has already been paid by or on behalf matter; or
(iii) allow the Management Parties the exclusive conduct of the Sellers proceedings, and in satisfaction of a Warranty Claim, then each case on the Buyer basis that the Management Parties shall pay indemnify the Amount Recovered to the Sellers Purchaser on or before the date falling five Business Days after the date on which that receipt or saving is made. For the purposes of paragraph 1.2 of this schedule, the Sellers shall be deemed never to have been liable to the Buyer in respect of the Amount Recovered.
5.6 For the purposes of paragraph 5.5 of this schedule, the "Amount Recovered" shall be equal to so much of the sum or benefit received by reason of the enforcement of any rights such as are referred to in paragraphs 5.1 or 5.2 as does not exceed the amount claimed by the Buyer in relation to such Warranty Claim or (as the case may be) the payment by or on behalf of the Sellers in satisfaction of the relevant Warranty Claim, less any Taxation payable by the Buyer or the Company in respect of that receipt and less demand against all reasonable costs and expenses incurred as a result of a request or nomination by the Management Parties;
(e) the Purchaser shall not, and shall ensure that no member of the Buyer and Purchaser Group will, admit liability in respect of, or compromise or settle, the Company matter without the prior written consent of the Management Parties;
(f) the Management Parties shall not admit liability in recovering that receipt respect of, or savingcompromise or settle, the matter without the prior written consent of the Purchaser.
Appears in 1 contract
