Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof. 3.3.2. Upon the Purchaser becoming aware of any claim, action or demand against it or matter likely to give rise to any of these in respect of the Warranties, the Purchaser shall, subject to paragraph 15 of this Schedule:- a) forthwith notify CILT by written notice as soon as it appears to the Purchaser that any assessment or claim of a third party received by or coming to the notice of the Purchaser may result in a claim under the Warranties; b) take such action and give such information and access to personnel, premises, chattels, documents and records to CILT and its professional advisers as CILT may reasonably request; c) at the request of CILT, allow CILT, at CILT's sole expense, to take the sole conduct of such actions as CILT may deem appropriate in connection with any such assessment or claim in the name of the Purchaser and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, give or cause to be given to CILT such assistance as CILT may reasonably require in avoiding, disputing, resisting, settling, compromises, defending or appealing any such claim and shall instruct such solicitors or other professional advisers as CILT may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the Purchaser, as appropriate, but to act in accordance with CILT's sole instructions; or d) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILT. 3.3.3. In any event, CILT shall be entitled at any stage and at their sole discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim to the Purchaser as soon as practicable thereafter.
Appears in 2 contracts
Samples: Share Purchase Agreement (Aether Systems Inc), Share Purchase Agreement (Aether Systems LLC)
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. 3.1 Upon the Purchaser or the Company becoming aware of any claim, action or demand against it or matter likely to give rise to any of these in respect of the Non-Tax Warranties, the Purchaser shall, subject to paragraph 15 of this Schedule:-shall and shall procure that the Company shall:-
a(A) forthwith as soon as reasonably practicable notify CILT the Seller by written notice as soon as it appears to the Purchaser that any assessment the Seller is or claim of a third party received by or coming to the notice of the Purchaser may result in a claim become liable under the Non-Tax Warranties;
b(B) subject to the Seller indemnifying the Purchaser and/or the Company to their reasonable satisfaction against any liability, costs, damages or expenses which may be incurred thereby, take such action and give such information and access to personnel, premises, chattels, documents and records to CILT the Seller and its their professional advisers as CILT the Seller may reasonably requestrequest and the Seller shall be entitled to require the Company to take such action and give such information and assistance in order to avoid, dispute, resist, mitigate, settle, compromise, defend or appeal any claim in respect thereof or adjudication with respect thereto;
c(C) at the request of CILTthe Seller, allow CILT, at CILT's sole expense, the Seller to take the sole conduct of such actions as CILT the Seller may deem appropriate in connection with any such assessment or claim in the name of the Purchaser or the Company and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, shall give or cause to be given to CILT the Seller all such assistance as CILT the Seller may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim and shall instruct such solicitors or other professional advisers advisors as CILT the Seller may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the PurchaserPurchaser or the Company, as appropriate, but to act in accordance with CILTthe Seller's sole instructions; or;
d(D) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILT.the Seller, such consent not to be unreasonably withheld or delayed; and
3.3.3. In any event, CILT shall be entitled at any stage and at their sole discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim (E) take all reasonable action (having regard to the Purchaser as soon as practicable thereaftercommercial interests of the Company) to mitigate any loss suffered by it in respect of which a claim could be made under the Non-Tax Warranties.
Appears in 2 contracts
Samples: Share Sale Agreement (Willis Corroon Group LTD), Share Sale Agreement (Willis Corroon Group LTD)
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. (A) Upon the Purchaser or the Company becoming aware of any claim, action or demand against it or matter likely to give rise to any of these in respect of the WarrantiesWarranties and Undertakings, the Purchaser shall and shall procure that the Company shall, subject to paragraph 15 of this Schedule:-:
a(i) forthwith notify CILT by written notice as soon as it appears to within seven (7) Business Days from the Purchaser that date any assessment or claim of made by a third party received by or coming to the notice of the Purchaser which may result in a claim under the WarrantiesWarranties or Undertakings is notified to the Company or the Purchaser, notify the Seller by written notice of such assessment or claim. The failure to notify the Seller shall not relieve the Seller of any liability that may have to the Purchaser, to the extent that the Purchaser may prove that the defence of such claim, action or demand by Seller has not been in any way harmed by the Purchaser's or the Company's failure to give such notice to the Seller;
b(ii) take such action and give such information and access to personnel, premises, chattels, documents and records to CILT the Seller and its professional advisers as CILT the Seller may reasonably requestrequest and the Seller shall be entitled to require the Purchaser and/or the Company to take such reasonable action and give such reasonable information and assistance in order to avoid, dispute, resist, mitigate, settle, compromise, defend or appeal any claim in respect thereof or adjudication with respect thereto;
c(iii) at the request of CILTthe Seller, allow CILT, at CILT's sole expense, the Seller to take the sole conduct of such actions actions, as CILT the Seller may deem appropriate in connection with any such assessment or claim in the name of the Purchaser and/or the Company and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, shall give or cause to be given to CILT the Seller all such assistance as CILT the Seller may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim and shall instruct such solicitors counsels or other professional advisers acceptable to the Purchaser or the Company, as CILT the Seller may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the PurchaserPurchaser or the Company, as appropriate, but to act in accordance with CILT's sole instructions; or
d) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILT.
3.3.3. In any event, CILT shall be entitled at any stage and at their sole discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim to the Purchaser as soon as practicable thereafter.Sellers
Appears in 2 contracts
Samples: Shares Sale and Purchase Agreement (Ultrapar Holdings Inc), Shares Sale and Purchase Agreement (Ultrapar Holdings Inc)
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make In case a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled Claim could arise with respect to any compensation in respect thereof.
3.3.2. Upon the Purchaser becoming aware of any claimnegotiation, action dispute or demand against it or matter likely to give rise to any of these in respect of the Warranties, the Purchaser shall, subject to paragraph 15 of this Schedule:-
a) forthwith notify CILT by written notice as soon as it appears to the Purchaser that any assessment or claim of a third party received by or coming to the notice of the Purchaser may result in a claim under the Warranties;
b) take such action and give such information and access to personnel, premises, chattels, documents and records to CILT and its professional advisers as CILT may reasonably request;
c) at the request of CILT, allow CILT, at CILT's sole expense, to take the sole conduct of such actions as CILT may deem appropriate in connection with any such assessment or claim in the name of the Purchaser and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, give or cause to be given to CILT such assistance as CILT may reasonably require in avoiding, disputing, resisting, settling, compromises, defending or appealing any such claim and shall instruct such solicitors or other professional advisers as CILT may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the Purchaser, as appropriate, but to act in accordance with CILT's sole instructions; or
d) make no admission of liability, agreement, settlement or compromise litigation relating thereto with any third party for which only money damages are sought, the Seller or its Affiliates shall have the right at their expense to elect a legal and/or tax adviser to assist the Seller or its Affiliates in relation contesting and/or defending such Claim.
a. Purchaser will grant to the Seller or its Affiliates or their counsel all authorizations and all assistance reasonably necessary (at the Seller’s or its Affiliates expense) to enable them to defend such matter and to properly conduct any litigation resulting therefrom; and
b. Purchaser may retain separate co-counsel and participate in the defense of such claim Claim at its own expense; and
c. So long as the Seller or adjudication its Affiliates have assumed and are conducting the defense of such Claim neither the Purchaser nor its Affiliates shall acknowledge any liability or reach an agreement with respect to a fact or circumstance that may lead to a Claim without the prior written consent of CILT.Seller or its Affiliates (not to be unreasonably withheld or delayed); and
3.3.3d. No indemnifying party hereunder may consent to the entry of any judgment that does not relate solely to monetary damages arising from any third party claim without the prior written consent of the indemnified party (which consent shall not be unreasonably withheld). The indemnifying party shall permit the indemnified party to participate in, but not control, the defense of any such action or suit through counsel chosen by the indemnified party, provided that the fees and expenses of such counsel shall be borne by the indemnified party. The Purchaser shall ensure that the Seller or its Affiliates can, if so requested by it, compromise or defend, at their own expense and by their own counsel, any such dispute. If the Seller or its Affiliates shall undertake to compromise or defend any such asserted liability, it shall promptly notify the Purchaser in writing of its intentions to do so. In case a Claim could arise with respect to any eventnegotiation, CILT dispute or litigation relating thereto with any third party for which equitable relief is sought, Purchaser shall be entitled at any stage and have the right at their sole discretion expense to settle any contest or defend against such third party assessment or claim and shall notify any such decision to settle such assessment or claim claim. Seller will grant to the Purchaser, its Affiliates and counsel all authorizations and all assistance reasonably necessary to enable them to defend such matter and to properly conduct any litigation resulting therefrom, at Seller’s reasonable expense to be reimbursed by Purchaser. So long as the Purchaser as soon as practicable thereafteror its Affiliates have assumed and are conducting the defense of such Claim neither the Seller nor its Affiliates shall acknowledge any liability or reach an agreement with respect to a fact or circumstance that may lead to a Claim without the prior written consent of Purchaser or its Affiliates (not to be unreasonably withheld or delayed). Even if Purchaser opts to contest or defend a Claim, Purchaser retains the right to make a Claim for indemnification related thereto under this Agreement.
Appears in 2 contracts
Samples: Asset Sale and Purchase Agreement, Asset Sale and Purchase Agreement (Akorn Inc)
Conduct of Litigation. 3.3.1. If (A) As soon as reasonably practicable after the Purchaser considers that it will or may make a claim against CILT for breach any member of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. Upon the Purchaser becoming Purchaser's Group receives or otherwise becomes actually aware of any assessment, claim, action or demand against it by a third party (not being the Vendor or matter a member of the Vendor's Group) (a "THIRD PARTY CLAIM") which is reasonably likely to give rise to any of these claim in respect of any of the WarrantiesWarranties or pursuant to PARAGRAPH 16 of SCHEDULE 8, the Purchaser shall notify the Vendor in writing of such Third Party Claim. Such notice shall include such details of the Third Party Claim of which the Purchaser or any member of the Purchaser's Group is actually aware (including the quantum of the Third Party Claim, if known, and whether the Third Party Claim is (or is reasonably likely to be) an Insured Third Party Claim (as defined in SUB-PARAGRAPH (G) below)) and which the Purchaser, acting reasonably, considers relevant in order for the Vendor to evaluate the Third Party Claim and whether such Third Party Claim prima facie gives rise to a claim in respect of any of the Warranties or pursuant to paragraph 16 of Schedule 8. Any failure by the Purchaser to comply with this SUB-PARAGRAPH (A) shall not, for the avoidance of doubt, of itself prevent the Purchaser or the relevant Designated Purchaser from bringing a Warranty claim but none of the Vendor, the Share Sellers, the US Business Seller or the IP Asset Sellers shall be liable to the Purchaser or the relevant Designated Purchaser in respect of such Warranty claim to the extent that the amount of it is increased, or not reduced, as a result of such failure.
(B) Subject to the provisions of PARAGRAPH (C) below, the Purchaser shall, subject and shall procure that any relevant member of the Purchaser's Group shall, take such action as is 128 reasonable in order to paragraph 15 avoid, dispute, resist, mitigate or defend the Third Party Claim (and any related action) with reasonable diligence. With respect to the conduct of this Schedule:-a Third Party Claim by the Purchaser, the Purchaser undertakes that:
(i) it shall notify the Vendor in writing of the legal counsel which the Purchaser or the relevant member of the Purchaser's Group proposes to instruct with respect to the Third Party Claim and such legal counsel shall be entitled to act in relation thereto (a) forthwith notify CILT unless the Vendor reasonably objects in writing thereto within five Business Days of receipt by the Vendor of written notification of the identity of such legal counsel from the Purchaser or the relevant member of the Purchaser's Group and (b) if such legal counsel and the Purchaser or the relevant member of the Purchaser's Group agree with the Vendor in writing that, if the Vendor exercises its rights to assume conduct of the Third Party Claim under SUB-PARAGRAPH (C) below, the legal counsel will (if so requested by the Vendor) continue to act in relation to the Third Party Claim on the instruction of the Vendor;
(ii) in response to reasonable requests from the Vendor from time to time, it or the relevant member of the Purchaser's Group shall keep the Vendor informed of the progress of the Third Party Claim;
(iii) it or the relevant member of the Purchaser's Group shall provide the Vendor with copies of such documentation relating to the Third Party Claim as the Vendor may reasonably request at the cost of the Vendor;
(iv) it or the relevant member of the Purchaser's Group shall give the Vendor such opportunities as the Vendor may reasonably request to make written or reasonable oral representations regarding the conduct of the Third Party Claim;
(v) it or the relevant member of the Purchaser's Group shall give the Vendor written notice, of such period as is reasonable in the context of the Third Party Claim, the proposal and the circumstances in which it is made, of any proposal to settle or consent to the entry of any judgment in respect of the Third Party Claim, such notice to include reasonable details of the proposed settlement or consent to the entry of judgment; and
(vi) neither it nor the relevant member of the Purchaser's Group shall settle or consent to the entry of any judgment in respect of the Third Party Claim during the period set out in SUB-PARAGRAPH (B)(v) without the prior written consent of the Vendor.
(C) At any time following the receipt by the Vendor of any notice of a Third Party Claim under SUB-PARAGRAPH (A) above and prior to the settlement, consent to the entry of judgment of, or non-appealable decision of a court of competent jurisdiction in respect of, such Third Party Claim, the Vendor shall be entitled, on written notice as soon as it appears to the Purchaser that any assessment or claim of a third party received by or coming and subject to the notice provisions of SUB-PARAGRAPHS (D) and (G) below, to assume conduct of the Purchaser may result in a claim under the Warranties;
b) take such action and give such information and access to personnel, premises, chattels, documents and records to CILT and its professional advisers as CILT may reasonably request;
c) at the request of CILT, allow CILT, at CILT's sole expense, to take the sole conduct of such actions as CILT may deem appropriate in connection with any such assessment or claim Third Party Claim in the name of the Purchaser or the appropriate member of the Purchaser's Group; EXCEPT that the Vendor shall not be entitled to assume conduct of any Third Party Claim which is a criminal action or proceeding. For the avoidance of doubt, the Vendor shall be entitled to assume conduct of any non-criminal action or proceeding (pursuant and subject to the provisions of this SUB-PARAGRAPH (C)) which arises out of the same facts and circumstances as a criminal action or proceeding.
(D) The Vendor shall not be entitled to assume conduct of any Third Party Claim in the name of the Purchaser, any other member of the Purchaser's Group or otherwise unless the Vendor first (i) admits irrevocably and unconditionally (subject to the relevant provisions of SCHEDULE 7 (Limitations on Liability)) to the Purchaser in writing and in that connection a legally binding manner its liability under the Warranties in relation thereto, and (ii) undertakes in a deed to the Purchaser shall, upon receiving such security for its costs as that it will indemnify the Purchaser may reasonably requestand each other member of the Purchaser's Group against all liabilities, give costs, damages or expenses incurred by any member of the Purchaser's Group (whether prior to, on or after the date of such deed) in respect of such Third Party Claim or the conduct thereof; PROVIDED that the limitations set out in SUB-PARAGRAPHS 1(A) and 1(B) of this SCHEDULE 7 and PARAGRAPH 6 of this SCHEDULE 7 shall apply to any liability of the Vendor under this SUB-PARAGRAPH (D)(ii) as if such liability were a Warranty claim for the purposes of those paragraphs.
(E) Where the Vendor assumes the conduct of a Third Party Claim pursuant to the provisions of SUB-PARAGRAPH (C) above:
(i) the Purchaser undertakes that:
(a) neither it nor any other member of the Purchaser's Group shall make any admission of liability, agreement or settlement with any third party, or consent to the entry of judgment, in relation to the Third Party Claim;
(b) it shall give, or cause to be given by the relevant members of the Purchaser's Group, to CILT the Vendor all such assistance as CILT the Vendor may reasonably require in avoiding, disputing, resisting, settlingmitigating or defending the Third Party Claim, compromisesincluding, defending or appealing without limitation, such access to the books and records of any such claim and shall instruct such solicitors or other professional advisers as CILT may (with member of the Purchaser's consentGroup, and to the premises and employees and professional advisors of the Purchaser's Group, during Working Hours and on reasonable advance notice, as the Vendor may reasonably require; and
(c) it shall, and shall procure that each other member of the Purchaser's Group shall, pass to the Vendor copies of all notices or other documents received by the Purchaser or any member of the Purchaser's Group in relation to the Third Party Claim, in each case as soon as reasonably practicable after receipt by the Purchaser or relevant member of the Purchasers' Group thereof;
(ii) the Vendor undertakes that:
(a) if it decides not to instruct the same legal counsel as instructed by the Purchaser with respect to the Third Party Claim (if any), it or the relevant member of the Vendor's Group shall notify the Purchaser in writing of the legal counsel which the Vendor proposes to instruct with respect to the Third Party Claim and such legal counsel shall be entitled to act in relation thereto (x) unless the Purchaser reasonably objects in writing thereto within five Business Days of receipt by the Purchaser of written notification of the identity of such legal counsel from the Vendor or the relevant member of the Vendor's Group and (y) if such legal counsel and the Vendor or the relevant member of the Vendor's Group agree with the Purchaser in writing that, if the Purchaser exercises its rights under SUB-PARAGRAPH (F) below, the legal counsel will (if so requested by the Purchaser) continue to act in relation to the Third Party Claim on the instruction of the Purchaser;
(b) in response to reasonable requests from the Purchaser from time to time, it or the relevant member of the Vendor's Group shall keep the Purchaser informed of the progress of the Third Party Claim;
(c) it or the relevant member of the Vendor's Group shall provide the Purchaser with copies of such documentation relating to the Third Party Claim as the Purchaser may reasonably request;
(d) it or the relevant member of the Vendor's Group shall give the Purchaser such opportunities as the Purchaser may reasonably request to make written or reasonable oral representations regarding the conduct of the Third Party Claim;
(e) neither it nor any relevant member of the Vendor's Group shall take, permit or omit, or procure the taking, permitting or omission of, any step or action in relation to any Third Party Claim to the extent that (i) the Vendor in good faith and acting reasonably considers, or (ii) the Purchaser can demonstrate to the Vendor (acting reasonably and in good faith), in each case, that the taking, permitting or omission of the relevant step or action is reasonably likely to have an adverse effect on any trading relationship or the goodwill of any relevant member of the Purchaser's Group or the US Business which would, in either case, be material to the Transferring Business;
(f) without prejudice to the provisions of SUB-PARAGRAPH (E)(iii), it or the relevant member of the Vendor's Group shall give the Purchaser written notice, of such period as is reasonable in the context of the Third Party Claim, the proposal and the circumstances in which it is made, of any proposal to settle or consent to the entry of judgment in respect of the Third Party Claim, such notice to include reasonable details of the proposed settlement or consent to the entry of judgment; and
(g) without prejudice to the provisions of SUB-PARAGRAPH E (iii), neither it nor the relevant member of the Vendor's Group shall settle or consent to the entry of judgment in respect of the Third Party Claim during the period set out in SUB-PARAGRAPH (E)(ii)(f) without the prior written consent of the Purchaser.
(iii) the Vendor shall not be entitled to settle or consent to the entry of any judgment in respect of the Third Party Claim unless:
(a) such settlement or judgment provides for settlement or relief solely in the form of monetary payment; or
(b) if the settlement or judgment is not of the type described in SUB-PARAGRAPH (E)(iii)(a) above, without the prior written consent of the Purchaser (such consent not to be unreasonably withheldwithheld or delayed) nominate and, for the purposes of this PARAGRAPH E(iii)(b), it will be reasonable for the Purchaser to act withhold or delay its consent to a settlement or judgment if such settlement or judgment is reasonably likely to have an adverse effect on behalf any trading relationship or the goodwill of the relevant member of the Purchaser's Group or the US Business which adverse effect would be, as appropriatein either case, but material to act the Transferring Business.
(F) Notwithstanding the provisions of SUB-PARAGRAPHS (C), (D) and (E) above, the Purchaser shall be entitled to take control of any Third Party Claim the conduct of which has been assumed by the Vendor in accordance with CILTSUB-PARAGRAPH (C) above at any time after such assumption and prior to the settlement, consent to the entry of judgment of, or non-appealable decision of a court of competent jurisdiction in respect of, such Third Party Claim provided that the Purchaser:
(i) first waives irrevocably and unconditionally in writing and in a legally binding manner any and all claims which it, or any other member of the Purchaser's sole instructionsGroup, may have against the Vendor or any other member of the Vendor's Group (other than, in respect of insurance matters, the Captive Insurer) in respect of such Third Party Claim under this Agreement or any of the Specified Agreements; orand
d(ii) undertakes in a deed that it will indemnify the Vendor and the relevant members of the Vendor's Group (other than, in respect of insurance matters, the Captive Insurer) against all liabilities, costs, damages or expenses incurred (whether prior to or after the date of such deed) by any member of the Vendor's Group (other than, in respect of insurance matters, the Captive Insurer) in respect of such Third Party Claim (including, for the avoidance of doubt, the costs and expenses incurred by the Vendor or any other member of the Vendor's Group (other than, in respect of insurance matters, the Captive Insurer) in conducting the Third Party Claim pursuant to the provisions of this PARAGRAPH 3).
(G) If, in respect of a Third Party Claim, the Purchaser, or any other member of the Purchaser's Group, is entitled to make a claim under any policy of insurance (other than an insurance claim with no admission reasonable prospect of liabilitysuccess) such that the provisions of SUB-PARAGRAPH 5(A) apply to the matter giving rise to the Third Party Claim (an "INSURED THIRD PARTY CLAIM"), agreementthe provisions of SUB-PARAGRAPHS (B) to (F) shall be subject to the provisions of the relevant insurance policy or policies relating to such Insured Third Party Claim and the directions of the relevant insurer or insurers thereunder; PROVIDED that the Purchaser shall, settlement and shall procure that the other members of the Purchaser's Group shall, and the Vendor shall, and shall procure that the other members of the Vendor's Group shall, comply with the provisions of SUB-PARAGRAPHS (B) to (F) to such extent as is permitted under the relevant insurance policy or compromise policies with any third party respect to the Insured Third Party Claim or as the relevant insurer or insurers thereunder may otherwise consent.
(H) If, in relation to any claim for any breach of the Tax Warranties there is also a claim in respect of the same subject matter for a liability under the Tax Covenant, Clause 8 of the Tax Covenant shall govern the conduct of the relevant litigation and/or claim for breach of such claim or adjudication without Tax Warranties in precedence to and notwithstanding the prior written consent provisions of CILTthis PARAGRAPH 3.
3.3.3. In any event, CILT shall be entitled at any stage and at their sole discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim to the Purchaser as soon as practicable thereafter.
Appears in 2 contracts
Samples: Sale Agreement (Inverness Medical Innovations Inc), Sale Agreement (Inverness Medical Innovations Inc)
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to (A) Upon any compensation in respect thereof.
3.3.2. Upon the Purchaser becoming aware of any claim, action or demand against it or matter likely to give rise to any of these in respect of the WarrantiesWarranties and Undertakings, the Purchaser shall, subject to paragraph 15 Purchasers shall and shall procure that the appropriate member of this Schedule:-the Baltic Group shall:-
a(i) forthwith as soon as practicable notify CILT any of the Sellers by written notice as soon as after it appears to the any Purchaser that such Seller may become liable under the Warranties or Undertakings or any assessment or claim of a third party received by or coming to the notice of the any Purchaser may result in a claim under the WarrantiesWarranties or Undertakings;
b(ii) subject to the Sellers indemnifying the relevant Purchaser to its reasonable satisfaction against any liability, costs, damages or expenses (including reasonable legal fees and out-of-pocket expenses) which may be incurred thereby take such action and give such information and access upon reasonable notice and during normal working hours to personnel, premises, chattels, documents and records to CILT the Sellers and its their professional advisers as CILT the Sellers may reasonably request and the relevant member of the Baltic Group to take such action and give such information and assistance in order to avoid, dispute, resist, mitigate, settle, compromise, defend or appeal any claim in respect thereof or adjudication with respect thereto as the Sellers may reasonably request;
c(iii) at the request of CILTthe Sellers, allow CILT, at CILT's sole expense, the Sellers to take the sole conduct of such actions as CILT the Sellers may deem appropriate in connection with any such assessment or claim in the name of the Purchaser Purchasers or the appropriate member of the Baltic Group and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, Purchasers shall give or cause to be given to CILT the Sellers all such assistance as CILT the Sellers may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim and shall at the Sellers' cost instruct such solicitors or other professional advisers as CILT the Sellers may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the PurchaserPurchasers or the appropriate member of the Baltic Group, as appropriate, but to act in accordance with CILT's the Sellers' sole instructions; orinstructions Provided that the Sellers shall keep the Purchasers fully and promptly informed of the details of the action;
d(iv) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILTthe Sellers (not to be unreasonably withheld or delayed); and
(v) take all reasonable action to mitigate any loss suffered by it or any member of the Baltic Group in respect of which a claim could be made under the Warranties or the Undertakings.
3.3.3. (B) In any event, CILT the Sellers shall be entitled at any stage and at their sole discretion to settle any such third party assessment or claim and claim. The Sellers shall notify the Purchasers of any such decision so to settle such assessment or claim to the Purchaser as soon as practicable thereafterclaim.
Appears in 2 contracts
Samples: Guaranty Agreement (American Standard Inc), Guaranty Agreement (American Standard Companies Inc)
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. 2.3.1 Upon the Purchaser or the Company becoming aware of any claim, action or demand against it or the Company or matter likely to give rise to any of these in respect of the Warranties, Warranties (other than the Tax Warranties to which Clause 8 of the Tax Covenant shall apply):-
2.3.1. 1the Purchaser shall, subject to paragraph 15 of this Schedule:-shall:-
(a) forthwith notify CILT the Warrantors by written notice as soon as reasonably practicable after it appears to the Purchaser that any assessment or claim of a third party received by or coming to the notice of the Purchaser may result in a claim against the Warrantors under the Warranties;
(b) subject to the Warrantors indemnifying the Purchaser and/or the Company to their reasonable satisfaction against any liability, costs, damages or expenses which may be incurred thereby and giving an undertaking as to confidentiality reasonably acceptable to the Purchaser, take such action and give such information and access to personnel, premises, chattels, documents and records to CILT of the Purchaser and/or the Company and its their professional advisers as CILT the Vendors' Representative may reasonably requestrequest and the Vendors' Representative shall be entitled to require the Purchaser or the Company to take such action and give such information or assistance in order to avoid, dispute, resist, mitigate, settle, compromise, defend or appeal any claim in respect thereof or adjudication with respect thereto;
(c) at the request of CILT, allow CILT, at CILT's sole expense, to take the sole conduct of such actions as CILT may deem appropriate in connection with any such assessment or claim in the name of the Purchaser and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, give or cause to be given to CILT such assistance as CILT may reasonably require in avoiding, disputing, resisting, settling, compromises, defending or appealing any such claim and shall instruct such solicitors or other professional advisers as CILT may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the Purchaser, as appropriate, but to act in accordance with CILT's sole instructions; or
d) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILTthe Vendors' Representative such consent not to be unreasonably withheld or delayed.
3.3.3. In any event, CILT shall be entitled at any stage and at their sole discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim to the Purchaser as soon as practicable thereafter.
Appears in 1 contract
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. Upon the Purchaser becoming aware of any claim, action or demand against it or matter likely to give rise to any of these in respect of the WarrantiesWarranties or the Environmental Undertaking (a "Claim"), the Purchaser shall, subject shall and shall procure that the relevant Group Company shall:-
(A) within 45 working days (or such shorter period as is necessary to paragraph 15 of this Schedule:-
aenable GEC to make a substantive response to any such Claim) forthwith notify CILT GEC by written notice as soon as it reasonably appears to the Purchaser that any assessment or claim such Claim of a third party received by or coming to the notice of the senior management of the Purchaser may result in a claim under the WarrantiesWarranties or the Environmental Undertaking;
b(B) subject to GEC indemnifying the Purchaser and/or the relevant Group Company to their reasonable satisfaction against any liability, costs, damages or expenses which may be reasonably and properly incurred thereby, take such action and give such information and and, upon reasonable notice, access to relevant personnel, premises, chattels, documents and records to CILT GEC and its professional advisers as CILT GEC may reasonably request;
c) at request and the request of CILT, allow CILT, at CILT's sole expense, to take the sole conduct of such actions as CILT may deem appropriate in connection with any such assessment or claim in the name of relevant Group Company and/or the Purchaser and in that connection and/or the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, give or cause to be given to CILT such assistance as CILT may reasonably require in avoiding, disputing, resisting, settling, compromises, defending or appealing any such claim and shall instruct such solicitors or other professional advisers as CILT may (with relevant member of the Purchaser's consentGroup shall take such action and give such information and assistance in order to avoid, such consent not to be unreasonably withheld) nominate to act on behalf of the Purchaserdispute, resist, mitigate, settle, compromise, defend or appeal any Claim in respect thereof or adjudication with respect thereto as appropriate, but to act in accordance with CILT's sole instructions; orGEC may reasonably require;
d(C) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim Claim or adjudication without the prior written consent of CILT.GEC (such consent not to be unreasonably withheld or delayed). If GEC agrees with the third party to settle or compromise a Claim, and the Purchaser refuses to agree to such settlement or compromise then, if the amount for which GEC subsequently becomes liable exceeds the figure at which it would have so settled or compromised the relevant Claim, GEC shall not be liable for the excess amount or any costs or liabilities incurred since the proposed date of settlement or compromise; and
3.3.3(D) subject as provided below and without prejudice to the generality of the foregoing at the request of GEC and subject to GEC indemnifying the Purchaser and/or the relevant Group Company to their reasonable satisfaction against any liability, costs, damages or expenses which may be reasonably incurred thereby, allow GEC to take the sole conduct of actions under any Environmental Warranty or the Environmental Undertaking as GEC may deem appropriate in connection with any such Claim in the name of the Purchaser or the appropriate member of the Purchaser's Group and in that connection the Purchaser shall give or cause to be given to GEC all such assistance as GEC may reasonably require in avoiding, disputing, resisting, settling, compromising, defending or appealing any such Claim. In any eventGEC shall:-
(i) in response to reasonable requests from the Purchaser from time to time, CILT keep the Purchaser informed of the progress of such Claim;
(ii) provide the Purchaser with copies of such documentation relating to such Claim as it may reasonably request; and
(iii) give the Purchaser such opportunities as it may reasonably request to make representations regarding the conduct of such Claim
(A) is reasonably expected to fall below L10 million, then GEC shall be entitled at any stage to sole conduct of such Claim (subject to paragraph (C) below); (B) is reasonably expected to exceed L10 million then GEC and at their sole discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim to the Purchaser shall have joint conduct of such Claim and (C) was thought to be below L10 million but it becomes apparent to GEC that it is likely that the aggregate will, in fact, exceed L10 million then, in cases where GEC has taken sole conduct, GEC shall promptly notify the Purchaser of the change in position and the Purchaser shall thenceforth be entitled to assume joint control of the Claim with GEC. In no event may GEC be required to indemnify the Purchaser for an amount in respect of Claims under the Environmental Undertaking in excess of L10 million. If the Purchaser and GEC fail to agree whether GEC is entitled to take sole conduct of a Claim, an expert opinion from an independent environmental consultant of no less than ten years experience in assessing the cost of environmental liability as soon as practicable thereafterto whether the costs, liabilities and expenses related to any Claim are likely to exceed L10 million (less any amounts paid or payable by GEC in respect of prior Claims under the Environmental Undertaking) shall be obtained whose opinion shall, in the absence of manifest error, be final. The costs of obtaining such opinion shall be borne equally by the parties. A copy of the opinion and any supporting material shall be available to each party.
(E) The Purchaser undertakes to comply with its common law duties to mitigate its loss and nothing in this Agreement shall derogate from that duty.
(F) Notwithstanding the terms of sub-paragraph (B) of this paragraph 4, GEC may not request the Purchaser to take any action against an Employee (except where there has been fraud or theft by the Employee).
Appears in 1 contract
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. 3.1 Upon the Purchaser or any other member of the Purchaser’s Group becoming aware of any claim, action or demand against it or any other matter likely to give rise to any of these claim in respect of any of the Warranties, the Purchaser shall, subject to paragraph 15 of this Schedule:-:
a(A) forthwith notify CILT by written notice as soon as it appears practicable notify the Seller thereof in writing in accordance with paragraph 2;
(B) subject to the Seller’s agreement to indemnify the Purchaser or the relevant member of the Purchaser’s Group in a form reasonably satisfactory to the Purchaser that against any assessment liability, cost, damage or claim expense which may be properly incurred thereby (but without thereby implying any admission of a third party received by or coming to liability on the notice part of the Purchaser may result in a claim under the Warranties;
b) Seller), take such action and give such information and access to personnel, premises, chattels, documents and records (which the Purchaser shall procure are preserved) to CILT the Seller and its professional advisers as CILT the Seller may reasonably requestrequest and the Seller shall be entitled to require any relevant member of the Purchaser’s Group to take such reasonable action and give such reasonable information and assistance (at the Seller’s cost) in order to avoid, dispute, resist, mitigate, settle, compromise, defend or appeal any claim in respect thereof or adjudication with respect thereto;
c(C) at the request of CILTthe Seller, allow CILT, at CILT's sole expense, the Seller to take the sole conduct of such claims, actions and/or demands (as CILT applicable) as the Seller may deem appropriate in connection with any such assessment claim, action or claim demand in the name of the Purchaser or any relevant member of the Purchaser’s Group and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, shall give or cause to be given (and shall procure that the relevant member of the Purchaser’s Group shall give or cause to CILT be given) to the Seller all such assistance (at the Seller’s cost) as CILT it may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim claim, action or demand and shall instruct such solicitors or other professional advisers as CILT the Seller may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the Purchaser or any relevant member of the Purchaser’s Group, as appropriate, but to act solely in accordance with CILT's sole instructionsthe Seller’s instructions provided that neither the Purchaser nor the relevant member of the Purchaser’s Group shall be required to commence any legal proceedings where either:
(i) the Purchaser or the relevant member of the Purchaser’s Group has validly assigned all of its rights in relation to the relevant claim, action or demand (as applicable) to the Seller in a manner which entitles the Seller to the same benefits in respect of such rights as the Purchaser or the relevant member of the Purchaser’s Group had; or
d(ii) where sub-paragraph 3.1(C)(i) does not apply or where the Seller otherwise requests in writing, the Seller has not notified the relevant party against whom such proceedings are brought that such proceedings are being brought at the instruction of the Seller; AND PROVIDED ALSO THAT, the Seller shall not be entitled to assume the defence of any such claim, action and/or demand if the claim, action and/or demand seeks any relief other than damages (including any orders, injunctions or other equitable relief) against any member of the Purchaser's Group which the relevant member of the Purchaser's Group reasonably determined cannot be separated from any related claim for damages. If such claim for other relief can be separated from the claim for damages, the Seller shall be entitled to assume the defence of the claim for damages. The Seller shall further be entitled to settle any claim, action and/or demand where relief other than damages is sought if the claimant agrees to settle such claim for damages and not to pursue other relief; AND PROVIDED ALSO THAT the Seller shall not be entitled (on written notice from the Purchaser) to assume or continue the defence of any such claim, action and/or demand in the event that such claim, action and/or demand, or the Seller’s conduct of the defence thereof, has caused or could cause (in the opinion of the Purchaser, acting reasonably and in good faith) material damage to the reputation or goodwill of any member of the Purchaser's Group; PROVIDED THAT in circumstances where the Seller is not entitled to assume or continue the defence of any claim, action or demand pursuant to this paragraph 3.1(C), the Purchaser shall keep the Seller informed and consult with the Seller in relation thereto, and take into account the Seller’s reasonable views thereon;
(D) be entitled to participate in the defence of the relevant claim, action or demand (as applicable) and to employ separate counsel to represent it as its own expense PROVIDED THAT the Seller shall control the defence of the relevant claim, action or demand (as applicable);
(E) make no admission of liability, agreement, settlement or compromise with any third party person in relation to any such claim claim, action or adjudication demand without the prior written consent of CILTthe Seller; and
(F) take, or procure that there is taken, all reasonable action to mitigate any loss suffered by it or by any member of the Purchaser’s Group in respect of which a claim could be made under the Warranties.
3.3.3. In any event, CILT 3.2 The Seller shall be entitled at any stage and at their its sole discretion to settle any such third party assessment claim, action or claim and shall notify demand (but without any such decision to settle such assessment or claim admission of wrongdoing, and, without prejudice to the limitations on liability set out in this Agreement, subject to the Seller compensating the Purchaser as soon as practicable thereafterfor the full amount of any Losses suffered, sustained and/or incurred by any member of the Purchaser's Group in this respect).
Appears in 1 contract
Samples: Business Sale and Purchase Agreement (Prestige Brands Holdings, Inc.)
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. (A) Upon the Purchaser or any member of the Purchaser's Group becoming aware of any claim, action or demand against it or matter which is likely to give rise to any of these claim in respect of any of the Warranties, the Purchaser shall:
(i) as soon as reasonably practicable notify the Sellers, save that, subject and without prejudice to paragraph 2, any failure to give such notice shall not preclude the Purchaser from making the relevant claim;
(ii) without prejudice to its right to make a claim against the Sellers under the Warranties, consult as fully as is reasonably 148 148 practicable with the Sellers as regards the conduct of any proceedings arising out of such claim;
(iii) if such claim, action or demand is for or in respect of an amount in excess of 2 per cent. of the Debt Free Price, without prejudice to the right of the Purchaser on its own behalf and on behalf of any Designated Purchaser to make a claim against the Sellers or any Business Seller or the Share Seller for breach of any of the Warranties, subject to paragraph 15 of this Schedule:-
a) forthwith notify CILT by written notice as soon as it appears to the Sellers indemnifying the Purchaser that and any assessment or claim of a third party received by or coming to the notice member of the Purchaser Purchaser's Group against any loss, liability and expenses, cost, damage or expense which may result in a claim under be incurred thereby (including the Warranties;
b) costs and expenses charged by its legal and other professional advisers), take such action and give such information and access to personnel, premises, chattels, documents and records to CILT the Sellers and its professional their legal advisers and accountants as CILT the Sellers may reasonably request;
c) at the request of CILT, allow CILT, at CILT's sole expense, and (subject to take the sole conduct of such actions as CILT may deem appropriate in connection with any such assessment or claim in the name indemnification of the Purchaser and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, give or cause to be given to CILT such assistance as CILT may reasonably require in avoiding, disputing, resisting, settling, compromises, defending or appealing any such claim and shall instruct such solicitors or other professional advisers as CILT may (with members of the Purchaser's consentGroup as described above) the Sellers shall be entitled to require any member of the Purchaser's Group to take such action as is, such consent not to be unreasonably withheld) nominate to act on behalf in the reasonable opinion of the Purchaser, reasonable and, subject to the Sellers agreeing to be bound by an obligation of confidentiality, give such information and assistance as appropriatethe Sellers may reasonably request in order to avoid, but dispute, resist, mitigate, settle, compromise, defend or appeal any claim in respect thereof or adjudication with respect thereto (subject to act the Purchaser being entitled to employ its own legal and other professional advisers);
(iv) in accordance with CILT's sole instructions; orthe case of a claim, action or demand of the type referred to in sub-paragraph (iii), be entitled to participate in the defence of the relevant claim, action or demand and to employ separate counsel to represent it at its own expense PROVIDED THAT the person who has elected to grant an indemnity under sub-paragraph (iii) shall control the defence of the relevant claim, action or demand;
d(v) in the case of a claim, action or demand of the type referred to in sub-paragraph (iii), make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILTthe Sellers (such consent not to be unreasonably withheld); and
(vi) without prejudice to its right to make a claim against the Sellers or the Business Sellers or the Share Seller under the Warranties, take all reasonable action to mitigate any loss 149 149 suffered by it or any member of the Purchaser's Group in respect of which a claim could be made under the Warranties PROVIDED THAT no member of the Purchaser's Group shall be required to utilise any Relief arising in respect of a period commencing after Completion or any event occurring after Completion or to arrange its Tax affairs in any particular manner by this sub-paragraph (vi), PROVIDED THAT if a claim arises under the Tax Warranties and the same matter also gives rise to a claim under the Tax Covenant, clause 8 of the Tax Covenant shall apply to the conduct of any proceedings rather than the provisions of paragraphs 3(A)(ii) to (vi) above.
3.3.3(B) Notwithstanding the foregoing, the Sellers shall not be entitled to assume the defence of any claim, action or demand of a third party (and shall be liable for the reasonable expenses (including legal and other professional expenses) incurred by the Purchaser or relevant member or members of the Purchaser's Group in defending such claim, action or demand) if such claim, action or demand seeks any relief other than damages (including any order, injunction or other equitable relief) against the Purchaser or relevant member or members of the Purchaser's Group which the Purchaser reasonably determines cannot be separated from any related claim for damages. In any eventIf such claim for other relief can be separated from the claim for damages, CILT the Sellers shall be entitled to assume the defence of the claim for damages.
(C) The Sellers shall be entitled at any stage and at their sole absolute discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim to the Purchaser as soon as practicable thereafterclaim.
Appears in 1 contract
Samples: Business and Share Sale and Purchase Agreement (Campbell Soup Co)
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. 3.1 Upon the Purchaser becoming aware of any assessment, claim, action or demand against it or any other matter likely to give rise to any of these in respect of Claim (the Warranties"Third Party Claim"), the Purchaser shall, subject to paragraph 15 of this Schedule:-:
(a) forthwith as soon as practicable notify CILT the Vendor by written notice as soon as it appears to the Purchaser that any assessment or claim of a third party Third Party Claim received by or coming to the notice of the Purchaser may result in a claim under the WarrantiesClaim;
(b) take such action and give such information and access subject to personnelthe Vendor indemnifying the Purchaser against any liability, premisescost, chattelsdamage or expense which may be incurred in relation to the Third Party claim, documents and records to CILT and its professional advisers as CILT may reasonably request;
c) at the request of CILT, the Vendor and in the Vendor's absolute discretion allow CILT, at CILT's sole expense, the Vendor to take the sole conduct of such actions as CILT in the Vendor's reasonably held opinion but taking into account the legitimate business interest of the Purchaser the Vendor may deem appropriate in connection with any such assessment or the Third Party claim in the name of the Purchaser or any relevant company and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, shall give or cause to be given to CILT the Vendor (provided it does not cause undue interference to the conduct of the Business) all such assistance as CILT the Vendor may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim Third Party Claim and shall instruct such solicitors legal or other professional advisers advisors as CILT the Vendor may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the PurchaserPurchaser or any relevant company, as appropriate, but to act in accordance with CILTthe Vendor's sole instructionsinstruction; orand
d(c) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such Third Party claim or adjudication without the prior written consent of CILTthe Vendor; (not to be unreasonably withheld or delayed).
3.3.3. 3.2 In connection with any eventsuch Third Party claim, CILT the Vendor shall:
(a) at all times keep the Purchaser informed as to its intentions with regard to the Vendor's conduct and any material action the Vendor proposes to take in respect of the Third Party Claim in order to allow the Purchaser sufficient time to consider the matter and consult with the Vendor about the Third Party Claim, and the Vendor shall take reasonable account of any proposals made by the Purchaser in connection with the Third Party claim; and
(b) make no admission of liability, agreement, settlement or compromise with any third party in relation to any Third Party Claim or adjudication without the prior written consent of the Purchaser (not to be unreasonably withheld or delayed).
3.3 The Vendor shall be entitled at any stage and at their sole its absolute discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim to the Purchaser as soon as practicable thereafterThird Party Claim.
Appears in 1 contract
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. (A) Upon the Purchaser becoming aware of any assessment, claim, action or demand against it or any other matter likely to give rise to any of these in respect Claim and any indemnification pursuant to Clause 6 of the WarrantiesAgreement (the "Third Party Claim"), the Purchaser shall, subject to paragraph 15 of this Schedule:-:
a(i) forthwith as soon as practicable notify CILT the Vendor by written notice as soon as it appears to the Purchaser that any assessment or claim of a third party Third Party Claim received by or coming to the notice of the Purchaser may result in a claim under the WarrantiesClaim;
b(ii) take such action and give such information and access subject to personnelthe Vendor indemnifying the Purchaser against any liability, premisescost, chattelsdamage or expense which may be incurred in relation to the Third Party claim, documents and records to CILT and its professional advisers as CILT may reasonably request;
c) at the request of CILT, the Vendor and in the Vendor's absolute discretion allow CILT, at CILT's sole expense, the Vendor to take the sole conduct of such actions as CILT in the Vendor's reasonably held opinion but taking into account the legitimate business interest of the Purchaser the Vendor may deem appropriate in connection with any such assessment or the Third Party claim in the name of the Purchaser or any relevant company and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, shall give or cause to be given to CILT the Vendor (provided it does not cause undue interference to the conduct of the Business) all such assistance as CILT the Vendor may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim Third Party Claim and shall instruct such solicitors legal or other professional advisers advisors as CILT the Vendor may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the PurchaserPurchaser or any relevant company, as appropriate, but to act in accordance with CILTthe Vendor's sole instructionsinstruction; orand
d(iii) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such Third Party claim or adjudication without the prior written consent of CILTthe Vendor; (not to be unreasonably withheld or delayed).
3.3.3. (B) In connection with any eventsuch Third Party claim, CILT the Vendor shall:
(i) at all times keep the Purchaser informed as to its intentions with regard to the Vendor's conduct and any material action the Vendor proposes to take in respect of the Third Party Claim in order to allow the Purchaser sufficient time to consider the matter and consult with the Vendor about the Third Party Claim, and the Vendor shall take reasonable account of any proposals made by the Purchaser in connection with the Third Party claim; and
(ii) make no admission of liability, agreement, settlement or compromise with any third party in relation to any Third Party Claim or adjudication without the prior written consent of the Purchaser (not to be unreasonably withheld or delayed).
(C) The Vendor shall be entitled at any stage and at their sole its absolute discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim to the Purchaser as soon as practicable thereafterThird Party Claim.
Appears in 1 contract
Samples: Share Purchase Agreement (Bio Technology General Corp)
Conduct of Litigation. 3.3.1. If the Purchaser considers or any Designated Purchaser receives written notice of any claim or potential claim by a third party (a Third Party Claim), which might reasonably result in a Non-Tax Claim being made, the Purchaser shall promptly (and in any event within 20 Business Days of it or a Designated Purchaser receiving such notice) give notice of the Third Party Claim to the Unilever Parents and ensure that it will the Unilever Parents and its representatives are given all reasonable information and access to facilities to investigate it, provided that any failure by the Purchaser to give such notice to the Unilever Parents under this paragraph 18 shall not prevent any Claim by the Purchaser or extinguish any liability of the Unilever Parents under this Agreement but may make a claim against CILT for breach be taken into account in calculating any such liability of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity Unilever Parents to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise Unilever Parents establish that such liability is increased by such failure. Furthermore, if:
(a) the Unilever Parents have confirmed to such claim is remedied within such 30 days period, the Purchaser in writing that the subject matter of the Third Party Claim shall not be entitled to any compensation in respect thereof.
3.3.2. Upon the Purchaser becoming aware of any claim, action or demand against it or matter likely to give rise to any of these a Claim (without prejudice to the restrictions and limitations set out in respect of the WarrantiesSchedule 3), the Purchaser shall, :
(i) not (and procure that each member of the Purchaser's Group shall not) admit liability or make any agreement or compromise in relation to the Third Party Claim without prior written approval of the Unilever Parents such approval not to be unreasonably withheld or delayed or conditioned;
(ii) (subject to paragraph 15 of this Schedule:-
a) forthwith notify CILT by written notice as soon as it appears to the Purchaser that any assessment or claim of a third party received by or coming to the notice (on behalf of the Purchaser may result relevant Designated Purchaser) being indemnified by the Unilever Parents (on behalf of themselves and/or the relevant Business Seller) against all reasonable out of pocket costs and expenses incurred in a claim under respect of that Third Party Claim) ensure that it and each member of the Warranties;Purchaser's Group shall:
b(A) take such action and give such information and access to personnel, premises, chattels, documents and records to CILT and its professional advisers as CILT the Unilever Parents may reasonably requestrequest to avoid, resist, dispute, appeal, compromise or defend the Third Party Claim;
c(B) at allow the request of CILT, allow CILT, at CILT's sole expense, Unilever Parents (if it elects to do so) to take over the sole conduct of such actions all proceedings and/or negotiations as CILT the Unilever Parents may reasonably deem appropriate in connection with any the Third Party Claim; and
(C) provide such assessment or claim in the name of the Purchaser information and in that connection the Purchaser shall, upon receiving such security for its costs assistance as the Purchaser may reasonably request, give or cause to be given to CILT such assistance as CILT Unilever Parents may reasonably require in avoidingconnection with the preparation for and conduct of any proceedings and/or negotiations relating to the Third Party Claim.
(b) the Unilever Parents have notified the Purchaser in writing that the subject matter of the Third Party Claim, disputingin their view, resistingdoes not give rise to a Claim, settling, compromises, defending or appealing any such claim the following shall apply:
(i) the Unilever Parents shall not (and shall instruct such solicitors procure that each member of the Unilever Group shall not) admit liability or other professional advisers as CILT may (with make any agreement or compromise in relation to the Third Party Claim without prior written approval of the Purchaser's consent, such consent approval not to be unreasonably withheldwithheld or delayed;
(ii) nominate to act on behalf the Purchaser shall not (and shall procure that each member of the Purchaser, as appropriate, but to act in accordance with CILT's sole instructions; or
dGroup shall not) admit liability or make no admission of liability, agreement, settlement any agreement or compromise with any third party in relation to any such claim or adjudication the Third Party Claim without the prior written consent approval of CILT.the Unilever Parents, such approval not to be unreasonably withheld or delayed;
3.3.3. In (iii) (subject to each party bearing their own costs) both the Unilever Parents (with respect to themselves and the other members of the Unilever Group) and the Purchaser (with respect to itself and the other members of the Purchaser's Group) shall:
(A) take such action as may be reasonably necessary and as requested by the other to avoid, resist, dispute, appeal, compromise or defend the Third Party Claim;
(B) shall jointly and in consultation with each other conduct the proceedings and/or negotiations as may reasonably be deemed appropriate in connection with the Third Party Claim; and
(C) provide such information and assistance to each other as the other may reasonably require in connection with the preparation for and conduct of any event, CILT shall be entitled at any stage and at their sole discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim proceedings and/or negotiations relating to the Third Party Claim;
(c) the Purchaser as soon as practicable thereafterhas notified the Unilever Parents in writing that the Purchaser shall not, and therefore irrevocably waives any right to, institute a Claim in relation to the subject matter of the relevant Third Party Claim, Parties agree that paragraphs 19(a) and 19(b) of Schedule 3 shall not apply.
Appears in 1 contract
Samples: Business and Share Sale and Purchase Agreement (Colgate Palmolive Co)
Conduct of Litigation. 3.3.1. If (A) As soon as reasonably practicable after the Purchaser considers that it will or may make a claim against CILT for breach any member of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. Upon the Purchaser becoming Purchaser’s Group receives or otherwise becomes actually aware of any assessment, claim, action or demand against it by a third party (not being the Vendor or matter a member of the Vendor’s Group) (a “Third Party Claim”) which is reasonably likely to give rise to any of these claim in respect of any of the WarrantiesWarranties or pursuant to paragraph 16 of Schedule 8, the Purchaser shall notify the Vendor in writing of such Third Party Claim. Such notice shall include such details of the Third Party Claim of which the Purchaser or any member of the Purchaser’s Group is actually aware (including the quantum of the Third Party Claim, if known, and whether the Third Party Claim is (or is reasonably likely to be) an Insured Third Party Claim (as defined in sub-paragraph (G) below)) and which the Purchaser, acting reasonably, considers relevant in order for the Vendor to evaluate the Third Party Claim and whether such Third Party Claim prima facie gives rise to a claim in respect of any of the Warranties or pursuant to paragraph 16 of Schedule 8. Any failure by the Purchaser to comply with this sub-paragraph (A) shall not, for the avoidance of doubt, of itself prevent the Purchaser or the relevant Designated Purchaser from bringing a Warranty claim but none of the Vendor, the Share Sellers, the US Business Seller or the IP Asset Sellers shall be liable to the Purchaser or the relevant Designated Purchaser in respect of such Warranty claim to the extent that the amount of it is increased, or not reduced, as a result of such failure.
(B) Subject to the provisions of paragraph (C) below, the Purchaser shall, subject and shall procure that any relevant member of the Purchaser’s Group shall, take such action as is reasonable in order to paragraph 15 avoid, dispute, resist, mitigate or defend the Third Party Claim (and any related action) with reasonable diligence. With respect to the conduct of this Schedule:-a Third Party Claim by the Purchaser, the Purchaser undertakes that:
(i) it shall notify the Vendor in writing of the legal counsel which the Purchaser or the relevant member of the Purchaser’s Group proposes to instruct with respect to the Third Party Claim and such legal counsel shall be entitled to act in relation thereto (a) forthwith notify CILT unless the Vendor reasonably objects in writing thereto within five Business Days of receipt by the Vendor of written notification of the identity of such legal counsel from the Purchaser or the relevant member of the Purchaser’s Group and (b) if such legal counsel and the Purchaser or the relevant member of the Purchaser’s Group agree with the Vendor in writing that, if the Vendor exercises its rights to assume conduct of the Third Party Claim under sub-paragraph (C) below, the legal counsel will (if so requested by the Vendor) continue to act in relation to the Third Party Claim on the instruction of the Vendor;
(ii) in response to reasonable requests from the Vendor from time to time, it or the relevant member of the Purchaser’s Group shall keep the Vendor informed of the progress of the Third Party Claim;
(iii) it or the relevant member of the Purchaser’s Group shall provide the Vendor with copies of such documentation relating to the Third Party Claim as the Vendor may reasonably request at the cost of the Vendor;
(iv) it or the relevant member of the Purchaser’s Group shall give the Vendor such opportunities as the Vendor may reasonably request to make written or reasonable oral representations regarding the conduct of the Third Party Claim;
(v) it or the relevant member of the Purchaser’s Group shall give the Vendor written notice, of such period as is reasonable in the context of the Third Party Claim, the proposal and the circumstances in which it is made, of any proposal to settle or consent to the entry of any judgment in respect of the Third Party Claim, such notice to include reasonable details of the proposed settlement or consent to the entry of judgment; and
(vi) neither it nor the relevant member of the Purchaser’s Group shall settle or consent to the entry of any judgment in respect of the Third Party Claim during the period set out in sub-paragraph (B)(v) without the prior written consent of the Vendor.
(C) At any time following the receipt by the Vendor of any notice of a Third Party Claim under sub-paragraph (A) above and prior to the settlement, consent to the entry of judgment of, or non-appealable decision of a court of competent jurisdiction in respect of, such Third Party Claim, the Vendor shall be entitled, on written notice as soon as it appears to the Purchaser that any assessment or claim of a third party received by or coming and subject to the notice provisions of sub-paragraphs (D) and (G) below, to assume conduct of the Purchaser may result in a claim under the Warranties;
b) take such action and give such information and access to personnel, premises, chattels, documents and records to CILT and its professional advisers as CILT may reasonably request;
c) at the request of CILT, allow CILT, at CILT's sole expense, to take the sole conduct of such actions as CILT may deem appropriate in connection with any such assessment or claim Third Party Claim in the name of the Purchaser and in that connection or the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, give or cause to be given to CILT such assistance as CILT may reasonably require in avoiding, disputing, resisting, settling, compromises, defending or appealing any such claim and shall instruct such solicitors or other professional advisers as CILT may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf appropriate member of the Purchaser, as appropriate, but to act in accordance with CILT's sole instructions’s Group; or
d) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without except that the prior written consent of CILT.
3.3.3. In any event, CILT Vendor shall not be entitled at to assume conduct of any stage and at their sole discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim to the Purchaser as soon as practicable thereafter.Third Party Claim which is a criminal action or
Appears in 1 contract
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. 3.1 Upon the Purchaser or any other member of the Purchaser Group becoming aware of any claim, action or demand against it or any other matter likely to give rise to any of these claim in respect of any of the Seller Warranties (other than the Seller Tax Warranties), the Purchaser shall, subject to paragraph 15 of this Schedule:-:
a) forthwith notify CILT by written notice A. as soon as it appears practicable notify the Seller thereof in writing in accordance with paragraph 2;
B. subject to the Seller’s agreement to indemnify the Purchaser or the relevant member of the Purchaser Group in a form reasonably satisfactory to the Purchaser that against any assessment liability, cost, damage or claim expense which may be properly incurred thereby (but without thereby implying any admission of a third party received by or coming to liability on the notice part of the Purchaser may result in a claim under the Warranties;
b) Seller), take such action and give such information and access to personnel, premises, chattels, documents and records (which the Purchaser shall procure are preserved) to CILT the Seller and its professional advisers as CILT the Seller may reasonably requestrequest for purposes of defending or settling such claim, in each case at Seller’s expense;
c) C. at the request of CILTthe Seller, allow CILT, at CILT's sole expense, the Seller to take the sole conduct of such claims, actions and/or demands (as CILT applicable) as the Seller may deem appropriate in connection with any such assessment claim, action or claim demand in the name of the Purchaser or any relevant member of the Purchaser Group and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably requestat Seller’s expense, give or cause to be given (and shall procure that the relevant member of the Purchaser Group shall give or cause to CILT be given) to the Seller all such assistance as CILT it may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim and shall instruct such solicitors claim, action or other professional advisers as CILT may (with demand provided that neither the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf Purchaser nor the relevant member of the PurchaserPurchaser Group shall be required to commence any legal proceedings where either:
i. the Purchaser or the relevant member of the Purchaser Group has validly assigned all of its rights in relation to the relevant claim, action or demand (as appropriate, but applicable) to act the Seller in accordance with CILT's sole instructionsa manner which entitles the Seller to the same benefits in respect of such rights as the Purchaser or the relevant member of the Purchaser Group had; or
dii. where sub-paragraph 3.1(C)(i) make no admission does not apply or where the Seller otherwise requests in writing, the Seller has not notified the relevant party against whom such proceedings are brought that such proceedings are being brought at the instruction of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILT.
3.3.3. In any event, CILT shall be entitled at any stage and at their sole discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim to the Purchaser as soon as practicable thereafter.Seller;
Appears in 1 contract
Conduct of Litigation. 3.3.1. (i) If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. Upon the Purchaser becoming becomes aware of any written claim, action or demand against it or matter any member of the Group or the Purchaser’s Group (a “Third Party Claim”) which is reasonably likely to give rise to any of these a Claim, other than a Claim in respect of a breach of any of the Tax Warranties, or a claim by the Purchaser under sub-clause 12.4 or 12.7(B)(ii) the Purchaser shall:
(a) as soon as reasonably practicable thereafter (and in any event no later than 30 days thereafter) give notice thereof in writing to the Principal Seller it being acknowledged that in the case of the claim under sub-clause 12.4, the Purchaser shall be deemed to have given such notice within the required time period;
(b) make available to accountants and other professional advisers appointed by the Principal Seller such access to the personnel of any member of the Group and to any relevant records and information as the Principal Seller may reasonably request in connection with such Third Party Claim; and
(c) (subject to the Principal Seller, the Purchaser or the relevant member of the Group being fully indemnified to its reasonable satisfaction against all reasonable costs, expenses and liabilities incurred in doing so), use all reasonable endeavours to procure that the auditors (both past and then current) of any member of the Group make available their audit working papers in respect of audits of any member of the Group’s accounts for any relevant accounting period in connection with such Third Party Claim.
(ii) If the Purchaser becomes aware of a Third Party Claim of which notice has been given by the Purchaser under paragraph 4(i)(a), the Purchaser shall, subject to paragraph 15 the Purchaser and the relevant member of this Schedule:-the Group being fully indemnified to its reasonable satisfaction by the Principal Seller against all reasonable costs, expenses and liabilities incurred in doing so:
(a) forthwith notify CILT by written notice take or procure such action to be taken as soon as it appears the Principal Seller shall reasonably request to the Purchaser that avoid, dispute, resist, appeal, compromise or defend such Third Party Claim or any assessment or claim adjudication in respect of a third party received Third Party Claim;
(b) if so requested by or coming to the notice Principal Seller, maintain consultation with the Principal Seller on all aspects of any proceedings in defence of a Third Party Claim;
(c) not admit liability in respect of a Third Party Claim, nor compromise, nor settle any proceedings in defence of a Third Party Claim, without the written consent of the Purchaser may result Principal Seller; and
(d) if so required by the Principal Seller in writing, ensure (or, as appropriate, shall co-operate to procure that the relevant member of the Group shall ensure), that the Principal Seller is placed in a claim under position to take on or take over the Warranties;
bconduct of all proceedings and/or negotiations of whatsoever nature arising in connection with the Third Party Claim in question and provide (or, as appropriate, co-operate to procure that each relevant member of the Group provides) take such action and give such information and access to personnel, premises, chattels, documents and records to CILT and its professional advisers as CILT may reasonably request;
c) at the request of CILT, allow CILT, at CILT's sole expense, to take the sole conduct of such actions as CILT may deem appropriate in connection with any such assessment or claim in the name of the Purchaser and in that connection the Purchaser shall, upon receiving such security for its costs assistance as the Purchaser may reasonably request, give or cause to be given to CILT such assistance as CILT Principal Seller may reasonably require in avoiding, disputing, resisting, settling, compromises, defending or appealing any such claim and shall instruct such solicitors or other professional advisers as CILT may (connection with the Purchaser's consentpreparation for and conduct of such proceedings and/or negotiations, such consent not provided that neither the Purchaser nor any member of the Group shall be required:
(1) to take any action (or omit to take any action) which is unlawful;
(2) to take any action (or omit to take any action) which the Purchaser reasonably believes to be unreasonably withheldMaterially Prejudicial. If the Purchaser does not take an action (or omit to take an action) nominate which it would otherwise be obliged to act take pursuant to this paragraph (ii) because it believes that it would be Materially Prejudicial then it will notify the Principal Seller of that fact and if the Purchaser does so notify the Principal Seller then the Principal Seller may within 14 days of receiving such written notice notify the Purchaser that it requires that the Purchaser and the Principal Seller instruct (and the Purchaser and the Principal Seller shall instruct) an Agreed Lawyer (as defined below) to give an opinion to them on behalf whether if the Purchaser takes (or omits to take) the relevant action the Purchaser or the relevant member of the Group will (on the balance of probabilities) be able to successfully defend the relevant Third Party Claim. If the opinion of such Agreed Lawyer is that the Purchaser or the relevant member of the Group would (on the balance of probabilities) be able to successfully defend the relevant Third Party Claim if the Purchaser took (or omitted to take) the relevant action then unless paragraph (1) is also applicable, the Purchaser will as soon as reasonably practicable thereafter take (or omit to take) (or, as applicable, procure that the relevant member of the Group takes (or omits to take)) the relevant action. The Principal Seller and the Purchaser will co-operate with and provide to the Agreed Lawyer such access to the personnel of the Purchaser, as appropriate, but to act in accordance with CILT's sole instructions; or
d) make no admission of liability, agreement, settlement or compromise with any third party in relation the Group and the Retained Group and to any such claim or adjudication without relevant records and information as the prior written consent Agreed Lawyer may reasonably request. The costs of CILT.
3.3.3the Agreed Lawyer shall be borne equally between the Principal Seller and the Purchaser. In any event, CILT shall be entitled at any stage this paragraph (2) the term “Agreed Lawyer” means a lawyer who has been qualified to practice law in the jurisdiction where the Third Party Claim has been made for more than 10 years and at their sole discretion to settle any such third party assessment or claim whose identity is agreed between the Principal Seller and shall notify any such decision to settle such assessment or claim to the Purchaser as soon as practicable thereafter.or, in the absence of such agreement within 14 days of the Principal Seller notifying the Purchaser that it requires the matter to be referred to an Agreed Lawyer, on the application of either party by the President (or equivalent officer) for the time being of the Law Society of England and Wales (or its successor body) and the term “Materially Prejudicial” means an action (or omission to take an action) which is materially prejudicial to or will have a material adverse impact on, the business, finances or interests of the Purchaser and/or the Group;
Appears in 1 contract
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. (A) Upon the Purchaser becoming aware of any claim, action or demand against it or any member of the Sale Group or any matter which it considers does or is likely to give rise to any of these a qualifying claim in respect of the Warranties, the Purchaser shall, shall and shall procure that the appropriate member of the Sale Group shall to the extent not already provided for in this Agreement and subject to as provided in sub-paragraph 15 of this Schedule:-(C) below:-
a(1) forthwith notify CILT the Vendor by written notice as soon as it appears to the Purchaser that the Vendor is or may become liable under the Warranties or that any assessment or claim of a third party received by or coming to the notice of the Purchaser may result in a qualifying claim under the WarrantiesWarranties but any failure to give such notice shall not affect the rights of the Purchaser except to the extent that the Vendor is materially prejudiced by such failure;
b(2) take such action action, give such assistance and give such information and access to personnel, premises, chattels, documents and records to CILT the Vendor and its professional advisers as CILT the Vendor may reasonably requestrequest and which shall not unreasonably interfere with the Sale Group's operations in order to avoid, dispute, resist, mitigate, settle, compromise, defend or appeal any claim in respect thereof or adjudication with respect thereto;
c(3) at the request of CILTthe Vendor, allow CILT, the Vendor at CILT's sole expense, its own expense to take the sole conduct of such actions as CILT the Vendor may deem appropriate in connection with any such assessment or claim in the name of the Purchaser or the appropriate member of the Sale Group and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, shall give or cause to be given to CILT the Vendor all such assistance as CILT the Vendor may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim and at the Vendor's expense shall instruct such solicitors or other professional advisers as CILT the Vendor may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the PurchaserPurchaser or the appropriate member of the Sale Group, as appropriate, but to act in accordance with CILTthe Vendor's sole instructions; or;
d(4) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILTthe Vendor.
3.3.3. In any event, CILT (B) The Vendor shall not be entitled at any stage and at their sole discretion to settle any such third party assessment or claim as is referred to in sub-clause (A) (other than solely for a cash sum in respect of which the Purchaser shall be entitled to be reimbursed by the Vendor under the Warranties) without the prior written consent of the Purchaser (which shall not be unreasonably withheld or delayed).
(C) The provisions of sub-paragraphs (2), (3) and (4) of paragraph 3(A) shall notify any such decision to settle such assessment or claim not apply:-
(1) unless the Vendor has first acknowledged and agreed in writing to the Purchaser as soon as practicable thereafterthat (subject to any of the provisions of paragraph 2 above) the Vendor shall be liable to the Purchaser under the Warranties in respect of the matter notified to it and the consequences of the litigation assumed by the Vendor under or pursuant to sub-paragraph (3);
(2) unless the Purchaser (and any other relevant member of the Sale Group) is indemnified against all reasonable costs, claims and expenses (including, without limit, reasonable professional costs and expenses) incurred in acting in accordance with the provisions of sub-paragraph (3); and/or
(3) if the Purchaser considers in good faith that the goodwill of it or any member of the Sale Group is likely to be materially prejudiced in consequence thereof.
Appears in 1 contract
Samples: Agreement for the Acquisition of the Share Capital (Tidewater Inc)
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. (A) Upon the Purchaser or any member of the Purchaser's Group becoming aware of any claim, action or demand against it or matter which is likely to give rise to any of these claim in respect of any of the Warranties, the Purchaser shall, subject to paragraph 15 of this Schedule:-:
a(i) forthwith notify CILT by written notice as soon as it appears practicable notify the Seller, save that, subject and without prejudice to paragraph 2 and sub-paragraph (D), any failure to give such notice shall not preclude the Purchaser from making the relevant claim;
(ii) subject to sub-paragraph (D) below and without prejudice to its right to make a claim against the Seller for breach of any of the Warranties, (a) consult as fully as is reasonably practicable with the Seller as regards the conduct of any proceedings arising out of such claim, (b) in response to reasonable requests from the Seller, keep the Seller informed of the progress of the claim, and (c) provide the Seller with copies of such documentation relating to the Purchaser that any assessment or claim of a third party received by or coming as the Seller may reasonable request;
(iii) subject to sub-paragraph (D) below and without prejudice to the notice right of the Purchaser may result in to make a claim under against the Seller for breach of any of the Warranties;
b) , and subject to the Seller indemnifying the Purchaser against any loss, liability and expenses, cost, damage or expense which may be incurred thereby, take such reasonable action and give such information and access to personnel, premises, chattels, documents and records to CILT the Seller and its professional legal advisers and accountants as CILT the Seller may reasonably requestrequest in order to avoid, dispute, resist, mitigate, settle, compromise, defend or appeal any claim in respect thereof or adjudication with respect thereto PROVIDED THAT the Purchaser shall not be obliged to take any action or proceedings (or join any legal proceedings) relating to the claim in question in circumstances where the Purchaser (acting reasonably) considers that to do so would have a material detrimental affect on the Purchaser, the Purchaser's Group or their respective businesses;
c(iv) at the request of CILT, allow CILT, at CILT's sole expense, to take the sole conduct of such actions as CILT may deem appropriate in connection with any such assessment or claim in the name case of a claim, action or demand in respect of which the Purchaser and provisions of sub-paragraph (iii) apply, be entitled to participate in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, give or cause to be given to CILT such assistance as CILT may reasonably require in avoiding, disputing, resisting, settling, compromises, defending or appealing defence of any such claim and to employ separate counsel to represent it at the Seller's expense PROVIDED THAT the Seller (acting reasonably) shall instruct control the defence of such solicitors or other professional advisers as CILT may claim;
(with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the Purchaser, as appropriate, but to act in accordance with CILT's sole instructions; or
dv) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILTthe Seller (such consent not to be unreasonably withheld); and
(vi) take all reasonable action to mitigate any loss suffered by it or any member of the Purchaser's Group in respect of which a claim could be made under the Warranties.
3.3.3(B) Notwithstanding the foregoing, the Seller shall not be entitled to participate in the defence of any claim, action or demand of a third party (and shall be liable for the reasonable expenses (including legal expenses) incurred by the Purchaser or relevant member of the Purchaser's Group in defending such claim, action or demand) if such claim, action or demand seeks any relief other than damages (including any order, injunction or other equitable relief) against the Purchaser or relevant member of the Purchaser's Group which cannot be separated from any related claim for damages. In any eventIf such claim for other relief can be separated from the claim for damages, CILT the Seller shall be entitled to participate in the defence of the claim for damages.
(C) The Seller shall be entitled at any stage and at their sole in its absolute discretion to settle any such third party assessment or claim and shall notify claim.
(D) If, pursuant to provisions of the proviso to sub-paragraph A (iii) above or otherwise, the Purchaser determines not to take any such decision to settle such assessment action or proceedings against the relevant third party in respect a claim to which this paragraph 3 relates, the Purchaser as soon as practicable thereaftershall not be entitled to bring any claim against the Seller in respect of the Warranties in respect of such claim.
Appears in 1 contract
Samples: Business Sale and Purchase Agreement (Premier Foods PLC)
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. (A) Upon the Purchaser or any member of the Purchaser's Group becoming aware of any claim, action or demand against it or any other matter likely to give rise to any of these claim in respect of any of the Warranties (other than the Tax Warranties, to which Clause 8 of the Tax Covenant shall apply), the Purchaser shall, subject to paragraph 15 of this Schedule:-shall:-
a(i) forthwith as soon as practicable notify CILT the Seller by written notice as soon as it appears to the Purchaser that any assessment or claim of a third party received by or coming to the notice of the Purchaser or any member of the Purchaser's Group may result in a claim under the Warranties;
b(ii) subject to the Seller indemnifying the Purchaser in a form reasonably satisfactory to the Purchaser against any liability, cost, damage or expense which may be incurred thereby, take such action and give such information and access to personnel, premises, chattels, documents and records to CILT the Seller and its professional advisers as CILT they may reasonably requestrequest and the Seller shall be entitled to require any relevant company to take such reasonable action and give such reasonable information and assistance in order to avoid, dispute, resist, mitigate, settle, compromise, defend or appeal any claim in respect thereof or adjudication with respect thereto;
c(iii) at the request of CILTthe Seller, allow CILT, at CILT's sole expense, the Seller to take the sole conduct of such actions as CILT the Seller may deem appropriate in connection with any such assessment or claim in the name of the Purchaser or any relevant company and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, shall give or cause to be given to CILT the Seller all such assistance as CILT the Seller may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim and shall instruct such solicitors or other professional advisers advisors as CILT the Seller may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the PurchaserPurchaser or any relevant company, as appropriate, but to act in accordance with CILTthe Seller's sole instructions; or;
d(iv) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILTthe Seller; and
(v) take all reasonable action to mitigate any loss suffered by it or any member of the Purchaser's Group in respect of which a claim could be made under the Warranties.
3.3.3. In any event, CILT (B) The Seller shall be entitled at any stage and at their its sole discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim to the Purchaser as soon as practicable thereafterclaim.
Appears in 1 contract
Samples: Agreement Relating to the Sale and Purchase of Shares (Warnaco Group Inc /De/)
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. 3.1 Upon the Purchaser becoming aware of any assessment, claim, action or demand against it or any other matter likely to give rise to any of these in respect of Claim (the Warranties“Third Party Claim”), the Purchaser shall, subject to paragraph 15 of this Schedule:-:
(a) forthwith as soon as practicable notify CILT the Vendors by written notice as soon as it appears to the Purchaser that any assessment or claim of a third party Third Party Claim received by or coming to the notice of the Purchaser may result in a claim under the WarrantiesClaim;
(b) take such action and give such information and access subject to personnelthe Vendors indemnifying the Purchaser against any liability, premisescost, chattelsdamage or expense which may be incurred in relation to the Third Party Claim, documents and records to CILT and its professional advisers as CILT may reasonably request;
c) at the request of CILT, the Vendors and in the Vendors’ absolute discretion allow CILT, at CILT's sole expense, the Vendors to take the sole conduct of such actions as CILT in the Vendors’ reasonably held opinion but taking into account the legitimate business interest of the Purchaser the Vendors may deem appropriate in connection with any such assessment or the Third Party claim in the name of the Purchaser or any relevant company, including the right to make any counter claim available provided that such counter claim is caused by the same circumstances as the relevant Third Party Claim, and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, shall give or cause to be given to CILT the Vendors (provided it does not cause undue interference to the conduct of the Business) all such assistance as CILT the Vendors may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim Third Party Claim and shall instruct such solicitors legal or other professional advisers advisors as CILT the Vendors may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the PurchaserPurchaser or any relevant company, as appropriate, but to act in accordance with CILT's sole instructionsthe Vendors’ instruction. The Purchaser shall give the Vendors or the Vendors’ duly authorized representatives, full access to the personnel of the Purchaser and/or the Company, as the case may be, and to any relevant premises, accounts, documents and records within their respective possession, and to take copies thereof, in order to enable the Vendors or the Vendors’ duly authorized representatives, to examine the basis of any potential Third Party Claim and defend against such claim; orand
d(c) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such Third Party claim or adjudication without the prior written consent of CILTthe Vendors; (not to be unreasonably withheld or delayed).
3.3.3. 3.2 In connection with any eventsuch Third Party claim, CILT the Vendors shall:
(a) at all times keep the Purchaser informed as to its intentions with regard to the Vendors’ conduct and any material action the Vendors proposes to take in respect of the Third Party Claim in order to allow the Purchaser sufficient time to consider the matter and consult with the Vendors about the Third Party Claim, and the Vendors shall take reasonable account of any proposals made by the Purchaser in connection with the Third Party claim; and
(b) make no admission of liability, agreement, settlement or compromise with any third party in relation to any Third Party Claim or adjudication without the prior written consent of the Purchaser (not to be unreasonably withheld or delayed).
3.3 The Vendors shall be entitled at any stage and at their sole its absolute discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim to the Purchaser as soon as practicable thereafterThird Party Claim.
Appears in 1 contract
Conduct of Litigation. 3.3.1. If In relation to any Claim in the Purchaser considers that it Buyer will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent will procure that the matter giving rise to such claim is remedied Company will:
(a) within such 30 days period, ten Business Days of the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. Upon Buyer or the Purchaser Company becoming aware of any claim, action such a claim or demand against it or matter circumstances likely to give rise to any of these in respect such a claim, notify each of the WarrantiesSellers in writing specifying in reasonable detail to the extent then available the nature of the potential liability and, so far as is practicable, the Purchaser shall, likely amount of such claim; provided further that no delay on the part of the Buyer or Company in timely notifying the Sellers shall relieve the Sellers from any obligation under this Agreement except to the extent the Sellers are actually prejudiced thereby;
(b) subject to paragraph 15 of this Schedule:-
a) forthwith notify CILT by written notice as soon as it appears the Sellers entering into a confidentiality undertaking in a form acceptable to the Purchaser that any assessment or claim of a third party received by or coming to the notice of the Purchaser may result in a claim under the Warranties;
bBuyer (acting reasonably) take such action and give such information and access to personnel, premises, chattels, documents and records to CILT the Sellers and its their duly authorised representatives and professional advisers as CILT the Sellers may reasonably requestrequest in order to enable the Sellers to take such action as is referred to in paragraphs (d) and (e) below;
(c) subject to the Sellers entering into a confidentiality undertaking in a form acceptable to the Buyer (acting reasonably) permit the Sellers and those representatives and advisers to make copies (at the Sellers’ cost) of those records and information;
(d) take such action and institute such proceedings and give such information and assistance, as the Sellers may reasonably request to:-
(i) dispute, resist, appeal, compromise, defend, remedy or mitigate the claim; or
(ii) enforce against any person the rights of CILT, allow CILT, at CILT's sole expense, the Company in relation to take the sole conduct of such actions as CILT may deem appropriate claim; and
(e) in connection with any such assessment proceedings related to the claim use professional advisers nominated by the Buyer and, if the Sellers so request, permit the Sellers to have exclusive conduct of the negotiations and/or proceedings, paragraphs (d) and (e) above in each case being on the basis that the Sellers shall indemnify the Buyer and the Company in respect of all reasonably incurred costs and expenses as a result of any request or claim nomination by the Sellers, save that the Buyer is not obligated to permit the Sellers to have (or to continue to have) conduct of the negotiations and/or proceedings in circumstances where the Buyer acting reasonably considers that it is not in the name commercial interests of the Purchaser Buyer and/or the Company and in that connection the Purchaser shall, upon receiving such security for its costs as said paragraphs (d) and (e) are subject always to the Purchaser may reasonably request, give Buyer's right to retain or cause to be given to CILT such assistance as CILT may reasonably require in avoiding, disputing, resisting, settling, compromises, defending or appealing take over the exclusive conduct of any such claim and shall instruct such solicitors or other professional advisers matters as CILT may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the Purchaser, as appropriate, but to act in accordance with CILT's sole instructions; or
d) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILTit sees fit.
3.3.3. In any event, CILT shall be entitled at any stage and at their sole discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim to the Purchaser as soon as practicable thereafter.
Appears in 1 contract
Samples: Share Purchase Agreement (Nu Horizons Electronics Corp)
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. (A) Upon the Purchaser or any member of the Purchaser’s Group becoming aware of any claim, action or demand against it or matter likely to give rise to any of these in respect of which a claim in excess of £2 million may be made under the Warranties (other than the Tax Warranties) or under any of the covenants or indemnities in this agreement (and excluding, for the avoidance of doubt, the Tax Covenant), the Purchaser shall and shall procure that the appropriate member of the Purchaser’s Group shall, subject to paragraph 15 of this Schedule:-:
a(i) forthwith as soon as practicable notify CILT the Seller by written notice as soon as it appears of the particular matter;
(ii) subject to the Purchaser that any assessment or claim of a third party received by or coming Seller agreeing to pay the notice reasonable out-of-pocket expenses of the Purchaser may result in a claim under and/or the Warranties;
b) relevant member of the Purchaser’s Group, take such action and give such information and access during Working Hours to personnel, premises, chattels, documents and records to CILT the Seller and its professional advisers as CILT the Seller may reasonably request;
c(iii) subject to the Seller agreeing to pay the reasonable out-of-pocket expenses of the Purchaser and/or the relevant member of the Purchaser’s Group, at the request of CILTthe Seller, allow CILT, at CILT's sole expense, the Seller to take the sole conduct of such actions as CILT the Seller may deem appropriate in connection with any such assessment or claim in the name of the Purchaser or the appropriate member of the Purchaser’s Group and in that connection the Purchaser shall, upon receiving such security for its costs as shall (at the Purchaser may reasonably request, cost of the Seller) give or cause to be given to CILT the Seller all such assistance as CILT the Seller may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim and shall instruct such solicitors or other professional advisers as CILT the Seller may (with the Purchaser's ’s consent, such consent not to be unreasonably withheldwithheld or delayed) nominate to act on behalf of the Purchaser or the appropriate member of the Purchaser’s Group, as appropriate, but to act in accordance with CILT's the Seller’s sole instructionsinstructions provided always that the Seller keeps the Purchaser reasonably informed as to the progress of such claims or actions and provided always that where a claim will or is likely to, in the reasonable opinion of the Purchaser, significantly prejudice the Purchaser’s or any member of the Purchaser’s Group’s relations with any Regulatory Authority or any Tax Authority the Seller shall consult with the Purchaser and will comply with any reasonable requirements of the Purchaser in relation to such claim (and where in so complying the Seller requires any consent of the Purchaser, such consent shall not be unreasonably withheld or delayed by the Purchaser); orand
d(iv) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILTthe Seller.
3.3.3. In (B) Except in relation to claims under the Tax Warranties and the Tax Covenant, in any event, CILT the Seller shall be entitled at any stage and at their its sole discretion to settle any such third party assessment or claim and shall provided that the Seller shall, where practicable, notify any the Purchaser in advance of such settlement of its decision so to settle such assessment or claim to provided that where such third party assessment or claim will or is likely to, in the reasonable opinion of the Purchaser, significantly prejudice the Purchaser’s or any member of the Purchaser’s Group’s relations with any Regulatory Authority or any Tax Authority the Seller shall consult with the Purchaser as soon as practicable thereafterand will comply with any reasonable requirements of the Purchaser in relation to such assessment or claim (and where in so complying the Seller requires any consent of the Purchaser, such consent shall not be unreasonably withheld or delayed by the Purchaser).
Appears in 1 contract
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. (a) Upon the Purchaser becoming aware of any claim, action or demand against it or matter likely to give rise to any of these in respect of the WarrantiesWarranties and Undertakings, the Purchaser shall, subject to paragraph 15 of this Schedule:-shall --
a(i) forthwith notify CILT the Seller by written notice as soon as it appears to the Purchaser that any assessment or claim of a third party received by or coming to the notice of the Purchaser may result in a claim under the WarrantiesWarranties or Undertakings;
b(ii) and shall procure that the Davy, Formet and /or Xxxxxx shall take such action and give such information and access to personnel, premises, chattels, documents and records to CILT the Seller and its professional advisers as CILT the Seller may reasonably requestrequest and the Seller shall be entitled to require the Companies to take such action and give such information and assistance in order to avoid, dispute, resist, mitigate, settle, compromise, defend or appeal any claim in respect thereof or adjudication with respect thereto;
c(iii) and shall procure that the Davy, Formet and /or Xxxxxx shall at the request of CILTthe Seller, allow CILT, at CILT's sole expense, the Seller to take the sole conduct of such actions as CILT the Seller may deem appropriate in connection with any such assessment or claim in the name of the Purchaser and in that connection the Purchaser shall, upon receiving such security for its costs as Seller shall consult with the Purchaser may reasonably request, as to the conduct of such action the Purchaser shall give or cause the Companies to be given give to CILT the Seller all such assistance as CILT the Seller may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim and shall instruct such solicitors or other professional advisers as CILT the Seller may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the Purchaser, as appropriate, but to act in accordance with CILT's the sole instructions; orinstructions of the Seller or the Companies (as applicable);
d(iv) and shall procure that the Davy, Formet and /or Xxxxxx shall make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILTthe Seller; and
(v) and shall procure that the Davy, Formet and /or Xxxxxx shall take all reasonable action to mitigate any loss suffered by it or the Companies in respect of which a claim could be made under the Warranties or the Undertakings.
3.3.3. (b) In any event, CILT the Seller shall be entitled at any stage and at their its sole discretion to settle any such third party assessment or claim and shall be under no obligation in this respect to notify any such the Purchaser of its decision so to settle such assessment or claim to the Purchaser as soon as practicable thereafterclaim.
Appears in 1 contract
Conduct of Litigation. 3.3.1(a) If any claim is made or action brought against Indemnitee for which Indemnitee intends to seek indemnification by the Company hereunder, Indemnitee, to the extent not inconsistent with any private insurance coverage obtained by the Company:
(i) shall retain counsel reasonably acceptable to Indemnitee and the Company to defend such claim or action, and shall permit the Company to monitor and direct the defense of such claim or action; or
(ii) at the Company's option, shall permit the Company, at its expense and with the use of counsel selected by it and reasonably acceptable to Indemnitee, to conduct the defense of such claim or action. The option given the Company under subsection (a)(ii) of this Section 2.4 shall be available to the Company at any time even if Indemnitee has proceeded initially to retain his or her own counsel pursuant to subsection (a)(i) of this Section 2.4.
(b) If the Company elects to proceed under subsection (a)(ii) of this Section 2.4, Indemnitee shall cooperate in all reasonable respects with the Company in the defense of the claim or action in question. If the Purchaser considers that it will or may make a claim against CILT for breach Company permits Indemnitee initially to proceed under subsection (a)(i) of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are this Section 2.4 and then available, and for a period the Company elects to proceed under subsection (a)(ii) of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days periodthis Section 2.4, the Purchaser Company's indemnification and advancement of Expenses pursuant to this Agreement shall not be entitled include the reasonable costs, including, without limitation, reasonable attorneys' fees, incurred by Indemnitee in initially proceeding under subsection (a)(i) of this Section 2.4 and in facilitating the Company's conduct of the defense after it has elected to any compensation in respect thereofproceed under subsection (a)(ii) of this Section 2.4.
3.3.2. Upon (c) Indemnitee shall have the Purchaser becoming aware of right to employ his or her own counsel in any claimProceeding; however, action or demand against it or matter likely to give rise to any of these except as otherwise provided in respect of the Warranties, the Purchaser shall, subject to paragraph 15 subsection (b) of this Schedule:-
a) forthwith notify CILT by written notice as soon as it appears to the Purchaser that Section 2.4, any assessment or claim of a third party received by or coming to the notice of the Purchaser may result in a claim under the Warranties;
b) take such action fees and give such information and access to personnel, premises, chattels, documents and records to CILT and its professional advisers as CILT may reasonably request;
c) at the request of CILT, allow CILT, at CILT's sole expense, to take the sole conduct expenses of such actions as CILT may deem appropriate counsel incurred after the Company elects to proceed under subsection (a)(ii) of this Section 2.4 shall be paid by Indemnitee, unless:
(i) the employment of separate counsel by Indemnitee is authorized in connection with any such assessment or claim in writing by the name of the Purchaser and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, give or cause to be given to CILT such assistance as CILT may reasonably require in avoiding, disputing, resisting, settling, compromises, defending or appealing any such claim and shall instruct such solicitors or other professional advisers as CILT may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the Purchaser, as appropriate, but to act in accordance with CILT's sole instructionsCompany; or
d(ii) make the parties to such Proceeding include Indemnitee, the Company and/or other parties, and the Company has retained the same counsel for Indemnitee, the Company and/or such other parties, and Indemnitee shall have been advised by counsel that one or more legal defenses may be available to him or her which may not be available to the Company and/or such other parties; or
(iii) the Company shall not in fact have selected and employed counsel to assume the defense of such Proceeding; or
(iv) the parties to such Proceeding include Indemnitee, the Company and/or other parties, and the Company has retained the same counsel for Indemnitee, the Company and/or such other parties, and Indemnitee shall have been advised by counsel that under applicable rules of ethical conduct such retained counsel may not represent all of such parties and no admission permitted waiver of liability, agreement, settlement or compromise with any third party such rules has occurred; in relation to any such claim or adjudication without each of which cases the prior written consent fees and expenses of CILT.
3.3.3. In any event, CILT Indemnitee's counsel shall be entitled at any stage and at their sole discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim to paid by the Purchaser as soon as practicable thereafterCompany.
Appears in 1 contract
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. Upon the Purchaser or a member of the Purchaser's Group becoming aware of any claim, action or demand against it or any matter likely to give rise to any of these in respect of the Warranties, other than in relation to Tax (or a claim under the Environmental Warranties in relation to a Protected Matter (which claim shall be governed by the Environmental Deed), (a "CLAIM"), the Purchaser shall and shall procure that the relevant member of the Purchaser's Group shall:
(A) promptly, subject to paragraph 15 and in any event within 20 Business Days of this Schedule:-
a) forthwith becoming so aware, notify CILT GEC by written notice as soon as it appears to the Purchaser or relevant member of the Purchaser's Group that any assessment or claim such Claim of a third party received by or coming to the notice of the Purchaser or any member of the Purchaser's Group may result in a claim under the WarrantiesWarranties provided that any failure so to notify shall not in itself preclude the relevant claim under the Warranties from being made;
b(B) subject to GEC indemnifying the Purchaser and the relevant member of the Purchaser's Group to their reasonable satisfaction against any liability, costs, damages or expenses which may be reasonably and properly incurred thereby, take such action and give such information and access to relevant personnel, premises, chattels, documents 102 and records to CILT GEC and its professional advisers as CILT GEC may reasonably requestrequest (having regard to the balance of interest between the Purchaser's interest in the trading relationships of the Xxxxx Xxxxxx Group and the amount and likelihood of the actual or potential liability of GEC under the Warranties) and the Purchaser and the relevant member of the Purchaser's Group shall take (or procure the taking of) such action and give (or procure the giving of) such information and assistance in order to avoid, dispute, resist, mitigate, settle, compromise, defend or appeal any Claim in respect thereof or adjudication with respect thereto as GEC may reasonably require except that the Purchaser shall not be required to institute any proceedings against any member of the Xxxxx Xxxxxx Group;
c(C) without prejudice to the Purchaser's rights (if any) to make a claim against GEC under the Warranties, at the request of CILTGEC and subject to GEC indemnifying the Purchaser and the relevant member of the Purchaser's Group to their reasonable satisfaction against any liability, costs, damages or expenses which may be reasonably and properly incurred thereby, allow CILT, at CILT's sole expense, GEC to take the sole conduct of such actions as CILT GEC may reasonably (having regard to the balance of interest between the Purchaser's interest in the trading relationships of the Xxxxx Xxxxxx Group and the amount and likelihood of the actual or potential liability of GEC under the Warranties) deem appropriate in connection with any such assessment or claim Claim in the name of the Purchaser or the relevant member of the Purchaser's Group and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, shall give or cause to be given to CILT GEC all such assistance as CILT GEC may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim Claim. GEC shall:
(i) in response to reasonable requests from the Purchaser from time to time, keep the Purchaser reasonably informed of the progress of, and shall instruct relevant matters relating to, the Claim;
(ii) provide the Purchaser with copies of such solicitors documentation relating to the Claim as it may reasonably request subject to relevant duties of confidentiality or other professional advisers restrictions; and
(iii) give the Purchaser such opportunities as CILT it may (with reasonably request to make representations regarding the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf conduct of the Purchaser, as appropriate, but to act in accordance with CILT's sole instructionsClaim; or103
d(D) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication Claim without the prior written consent of CILT.
3.3.3GEC (not to be unreasonably withheld or delayed). In any event, CILT shall be entitled at any stage and at their sole discretion If GEC agrees with the third party to settle any such third party assessment or claim compromise a Claim, and shall notify any such decision to settle such assessment or claim to the Purchaser as soon as practicable thereafterrefuses to agree to such settlement or compromise then, if the amount for which GEC subsequently becomes liable exceeds the figure at which it would have so settled or compromised the relevant Claim, GEC shall not be liable for the excess amount or any costs or liabilities incurred since the proposed date of settlement or compromise. Nothing in this Agreement shall relieve the Purchaser of any common law duty to mitigate its losses hereunder and the Purchaser shall procure that each member of the Purchaser's Group shall also comply with such common law duty.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (Avery Berkel Holdings LTD)
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. (A) Upon the Purchaser or any member of the Purchaser's Group becoming aware of any claim, action or demand against it or any other matter likely to give rise to any of these claim in respect of any of the Warranties (other than the Tax Warranties) or under the indemnity set out in Clause 11 (the "Clause 11 Indemnity"), the Purchaser shall, subject to paragraph 15 of this Schedule:-shall:-
a(i) forthwith notify CILT the Seller by written notice as soon as it appears to the Purchaser that any assessment or claim of a third party received by or coming to the notice of the Purchaser or any member of the Purchaser's Group may result in a claim under the WarrantiesWarranties or the Clause 11 Indemnity;
b(ii) subject to the Seller indemnifying the Purchaser in a form reasonably satisfactory to the Purchaser against any liability, cost, damage or expense (including legal expenses) which may be incurred by the Purchaser or any member of the Group, take such action and give such information and access to personnel, premises, chattels, documents and records to CILT the Seller and its professional advisers as CILT it may reasonably requestrequest to investigate the claim and the Seller shall be entitled to require (if such requirement is reasonable in the circumstances) any relevant member of the Purchaser's Group to take such action and give such information and assistance in order to avoid, dispute, resist, mitigate, settle, compromise, defend or appeal any claim in respect thereof or adjudication with respect thereto;
c(iii) in the case of any claim pursuant to the Warranties, cause the relevant member of the Group to consult as fully as is reasonably practicable with the Seller as regards the conduct of any proceedings arising out of such third party claim;
(iv) in the case of any claim under the Clause 11 Indemnity and at the request of CILTthe Seller, allow CILT, at CILT's sole expense, the Seller to take the sole conduct of such actions as CILT the Seller may deem appropriate in connection with any such assessment or claim in the name of the Purchaser or any relevant member of the Purchaser's Group or the Group and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, shall give or cause to be given to CILT the Seller all such assistance as CILT the Seller may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim and shall instruct such solicitors or other professional advisers as CILT the Seller may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the Purchaser or any relevant member of the Purchaser's Group or the Group, as appropriate, but to act in accordance with CILTthe Seller's sole instructions; orand
d(v) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILTthe Seller (such consent not to be unreasonably withheld).
3.3.3. (B) In any eventrelation to the Clause 11 Indemnity only, CILT the Seller shall be entitled at any stage and at their its sole discretion to settle any such third party assessment or claim and PROVIDED THAT it shall notify any such the Purchaser of its decision so to settle prior to it settling such assessment or claim to the Purchaser as soon as practicable thereafterclaim.
Appears in 1 contract
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. 10.1 Upon the Purchaser or any member of the Purchaser’s Group (including a Group Company) becoming aware of any claim, action or demand made or threatened by any third party (including an employee) against it or matter likely to a Group Company which may give rise to any of these in respect of the Warrantiesa Claim (“Third Party Claim”), the Purchaser shall, subject to paragraph 15 and shall procure that the appropriate member of this Schedule:-the Purchaser’s Group, shall:
(a) forthwith notify CILT Comtrade by written notice as soon as reasonably practicable after it becomes aware of such Third Party Claim, including where it appears to the Purchaser that any assessment it or claim a member of a third party received by or coming the Purchaser’s Group may become liable in respect of such Third Party Claim; and
(b) provide Comtrade with such reasonable information and documents in relation to the notice Third Party Claim or the matters likely to give rise to the Third Party Claim as are available to the Purchaser or the relevant member of the Purchaser may result in a claim Purchaser’s Group at the date of the notice under paragraph (a) and thereafter upon the Warranties;reasonable request by Comtrade; and
b) take such action and give such information and access to personnel, premises, chattels, documents and records to CILT and its professional advisers as CILT may reasonably request;
(c) if the Third Party Claim is brought by a (current or former) Employee of the Group (including a Worker) and provided that the amount of such Third Party Claim is estimated by Comtrade acting reasonably to be less than the maximum amount for which Comtrade could potentially be liable for a Claim in relation to such Third Party Claim at the relevant time under paragraph 2.2 of this Schedule 7 (which in no case can exceed EUR 30,000,000 (thirty million)) (an “Employee Claim”) and subject to Comtrade indemnifying the Purchaser against any and all Losses which are properly and reasonably incurred by the Purchaser or any member of the Purchaser’s Group (including the relevant Group Company) in connection with any such action, at the request of CILTComtrade, allow CILT, at CILT's sole expense, it to take the sole conduct of such actions as CILT may deem appropriate in connection with any such assessment or claim the Employee Claim in the name of the Purchaser or the appropriate Purchaser Group Company and in that connection regard, the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, shall give or cause to be given to CILT Comtrade such reasonable assistance as CILT Comtrade may reasonably require in avoiding, disputing, resisting, settling, compromisesmitigating, compromising or defending or appealing any such claim the Employee Claim and Comtrade shall instruct such solicitors or other professional advisers as CILT may (be entitled to settle the Employee Claim with the Purchaser's consent, prior consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed) nominate provided that if pursuant to act on behalf this paragraph Comtrade takes any action which, in the reasonable opinion of the Purchaser, would materially adversely affect the business of the Purchaser’s Group as appropriatea whole, but or cause the Purchaser, or a member of the Purchaser’s Group to act be in accordance breach or violation of any Law or Regulatory Requirement applicable to it, (and the Purchaser has, if reasonably requested by Comtrade, provided reasonable details of such material adverse effect or breach to Comtrade) then Comtrade shall cease to be entitled to have the sole conduct of the relevant Employee Claim and conduct shall (upon notice on Comtrade by the Purchaser) and subject to the other provisions of this paragraph 10 revert to the Purchaser;
(d) if the Third Party Claim is brought in respect of the Back-to-Back Indemnity and provided that the amount of such Third Party Claim is estimated by Comtrade acting reasonably to be less than the maximum amount for which Comtrade could potentially be liable for a Claim in relation to such Third Party Claim at the relevant time under paragraph 2.2 of this Schedule 7 (which in no case can exceed EUR 30,000,000 (thirty million)) (a “Back-to-Back Indemnity Claim”) and subject to Comtrade indemnifying the Purchaser against any and all Losses which are properly and reasonably incurred by the Purchaser or any member of the Purchaser’s Group (including the relevant Group Company) in connection with CILT's any such action, at the request of Comtrade, allow it to take the sole instructionsconduct of the Back-to-Back Indemnity Claim in the name of the Purchaser or the appropriate Purchaser Group Company and in that regard, the Purchaser shall give or cause to be given to Comtrade such reasonable assistance as Comtrade may reasonably require in avoiding, disputing, resisting, settling, mitigating, compromising or defending the Back-to-Back Indemnity Claim and Comtrade shall be entitled to settle the Back-to-Back Indemnity Claim with the prior consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed) provided that if pursuant to this paragraph Comtrade takes any action which, in the reasonable opinion of the Purchaser, would materially adversely affect the business of the Purchaser’s Group as a whole, or cause the Purchaser, or a member of the Purchaser’s Group to be in breach or violation of any Law or Regulatory Requirement applicable to it, (and the Purchaser has, if reasonably requested by Comtrade, provided reasonable details of such material adverse effect or breach to Comtrade) then Comtrade shall cease to be entitled to have the sole conduct of the relevant Back-to-Back Indemnity Claim and conduct shall (upon notice on Comtrade by the Purchaser) and subject to the other provisions of this paragraph 10 revert to the Purchaser; orand
d(e) make no submission, admission of liability, agreement, settlement or compromise to or with any third party in relation to any a Third Party Claim, provided that the amount at which such claim or adjudication Third Party Claim is proposed to be settled is less than the maximum amount for which Comtrade could potentially be liable for a Claim in relation to such Third Party Claim at the relevant time under paragraph 2.2 of this Schedule 7 (which in no case can exceed EUR 30,000,000 (thirty million)) without the prior written consent of CILT.
3.3.3. In any eventComtrade (such consent not to be unreasonably withheld, CILT conditioned or delayed), provided that nothing in this paragraph 10(b), (c), (d) or (e) shall be entitled at any stage and at their sole discretion to settle any such third party assessment require or claim and shall notify any such decision to settle such assessment or claim to demand the Purchaser or a Purchaser Group Company (including the Group) to do or refrain from doing any action which in the reasonable opinion of the Purchaser (i) materially adversely affects the business of the Purchaser’s Group as soon a whole as practicable thereafterthen carried on, or (ii) would cause the Purchaser, or a member of the Purchaser’s Group to be in breach or violation of any Law or Regulatory Requirement applicable to it (and the Purchaser has, if reasonably requested by Comtrade, provided reasonable details of such material adverse effect or breach to Comtrade). If the Purchaser notifies Comtrade that it wishes to act or refrain from acting under this paragraph 10(b), (c), (d) or (e) due to a breach of Law or Regulatory Requirement, then Comtrade and the Purchaser shall negotiate in good faith to replace the relevant course of action with a course of action which does not cause it to be in breach or violation of any Law or Regulatory Requirement and which, as far as possible, has the same commercial effect as that which it replaces.
Appears in 1 contract
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. 3.1 Upon the Purchaser or any other member of the Purchaser’s Group becoming aware of any claim, action or demand against it or any other matter likely to give rise to any of these claim in respect of any of the Warranties, the Purchaser shall, subject to paragraph 15 of this Schedule:-:
a(A) forthwith notify CILT by written notice as soon as it appears practicable notify the Seller thereof in writing in accordance with paragraph 2;
(B) subject to the Seller’s agreement to indemnify the Purchaser or the relevant member of the Purchaser’s Group in a form reasonably satisfactory to the Purchaser that against any assessment liability, cost, damage or claim expense which may be properly incurred thereby (but without thereby implying any admission of a third party received by or coming to liability on the notice part of the Purchaser may result in a claim under the Warranties;
b) Seller), take such action and give such information and access to personnel, premises, chattels, documents and records (which the Purchaser shall procure are preserved) to CILT the Seller and its professional advisers as CILT the Seller may reasonably requestrequest and the Seller shall be entitled to require any relevant member of the Purchaser’s Group to take such reasonable action and give such reasonable information and assistance (at the Seller’s cost) in order to avoid, dispute, resist, mitigate, settle, compromise, defend or appeal any claim in respect thereof or adjudication with respect thereto;
c(C) at the request of CILTthe Seller, allow CILT, at CILT's sole expense, the Seller to take the sole conduct of such claims, actions and/or demands (as CILT applicable) as the Seller may deem appropriate in connection with any such assessment claim, action or claim demand in the name of the Purchaser or any relevant member of the Purchaser’s Group and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, shall give or cause to be given (and shall procure that the relevant member of the Purchaser’s Group shall give or cause to CILT be given) to the Seller all such assistance (at the Seller’s cost) as CILT it may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim claim, action or demand and shall instruct such solicitors or other professional advisers as CILT the Seller may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the Purchaser or any relevant member of the Purchaser’s Group, as appropriate, but to act solely in accordance with CILT's sole instructionsthe Seller’s instructions provided that neither the Purchaser nor the relevant member of the Purchaser’s Group shall be required to commence any legal proceedings where either:
(i) the Purchaser or the relevant member of the Purchaser’s Group has validly assigned all of its rights in relation to the relevant claim, action or demand (as applicable) to the Seller in a manner which entitles the Seller to the same benefits in respect of such rights as the Purchaser or the relevant member of the Purchaser’s Group had; or
d(ii) where sub-paragraph 3.1(C)(i) does not apply or where the Seller otherwise requests in writing, the Seller has not notified the relevant party against whom such proceedings are brought that such proceedings are being brought at the instruction of the Seller; AND PROVIDED ALSO THAT, the Seller shall not be entitled to assume the defence of any such claim, action and/or demand if the claim, action and/or demand seeks any relief other than damages (including any orders, injunctions or other equitable relief) against any member of the Purchaser's Group which the relevant member of the Purchaser's Group reasonably determined cannot be separated from any related claim for damages. If such claim for other relief can be separated from the claim for damages, the Seller shall be entitled to assume the defence of the claim for damages. The Seller shall further be entitled to settle any claim, action and/or demand where relief other than damages is sought if the claimant agrees to settle such claim for damages and not to pursue other relief; AND PROVIDED ALSO THAT the Seller shall not be entitled (on written notice from the Purchaser) to assume or continue the defence of any such claim, action and/or demand in the event that such claim, action and/or demand, or the Seller’s conduct of the defence thereof, has caused or could cause (in the opinion of the Purchaser, acting reasonably and in good faith) material damage to the reputation or goodwill of any member of the Purchaser's Group; PROVIDED THAT in circumstances where the Seller is not entitled to assume or continue the defence of any claim, action or demand pursuant to this paragraph
3.1 (C), the Purchaser shall keep the Seller informed and consult with the Seller in relation thereto, and take into account the Seller’s reasonable views thereon.
(D) be entitled to participate in the defence of the relevant claim, action or demand (as applicable) and to employ separate counsel to represent it as its own expense PROVIDED THAT the Seller shall control the defence of the relevant claim, action or demand (as applicable);
(E) make no admission of liability, agreement, settlement or compromise with any third party person in relation to any such claim claim, action or adjudication demand without the prior written consent of CILTthe Seller; and
(F) take, or procure that there is taken, all reasonable action to mitigate any loss suffered by it or by any member of the Purchaser’s Group in respect of which a claim could be made under the Warranties.
3.3.3. In any event, CILT 3.2 The Seller shall be entitled at any stage and at their its sole discretion to settle any such third party assessment claim, action or claim and shall notify demand (but without any such decision to settle such assessment or claim admission of wrongdoing, and, without prejudice to the limitations on liability set out in this Agreement, subject to the Seller compensating the Purchaser as soon as practicable thereafterfor the full amount of any Losses suffered, sustained and/or incurred by any member of the Purchaser's Group in this respect).
Appears in 1 contract
Samples: Business Sale and Purchase Agreement (Prestige Brands Holdings, Inc.)
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. (A) Upon the Relevant Purchaser or any member of the Purchaser’s Group becoming aware of any claim, action or demand against it or any other matter likely to give rise to any of these claim in respect of any of the WarrantiesWarranties (other than a Tax Warranty Claim as to which the procedure set out in paragraph 6 of the Tax Indemnity shall apply) or otherwise under the Transaction Documents, the Relevant Purchaser shall, subject to paragraph 15 of this Schedule:-:
a(i) forthwith notify CILT by written notice as soon as it appears practicable notify the Relevant Sellers thereof in writing;
(ii) subject to the Purchaser that any assessment or claim of Relevant Sellers indemnifying the Relevant Purchasers in a third party received by or coming form reasonably satisfactory to the notice Relevant Purchasers against any liabilities, loss, damages, payments, costs and expenses which may reasonably be incurred thereby (but without implying any admission of the Purchaser may result in a claim under the Warranties;
b) liability thereby), take such action and give such information and access to personnel, premises, chattels, documents and records to CILT the Relevant Sellers, and its their professional advisers as CILT the Relevant Sellers may reasonably requestrequest and the Relevant Sellers shall be entitled to require any member of the Purchasers Group, to take such action and give such information and assistance in order to avoid, dispute, resist, mitigate, settle, compromise, defend or appeal any claim in respect thereof or adjudication with respect thereto;
c(iii) at the request of CILTthe Relevant Sellers, allow CILT, at CILT's sole expense, the Relevant Sellers (or the relevant one of them) to take the sole conduct of such actions as CILT the Relevant Sellers may deem appropriate in connection with any such assessment or claim in the name of the Relevant Purchaser or any relevant member of the Purchasers Group and in that connection the Relevant Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, shall give or cause to be given to CILT the Relevant Sellers all such assistance as CILT they may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim and shall instruct such solicitors or other professional advisers as CILT the Relevant Sellers may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the PurchaserRelevant Purchasers or any member of the Purchasers Group, as appropriate, but to act in accordance with CILT's sole the Relevant Sellers instructions; orand
d(iv) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILTthe Relevant Sellers.
3.3.3. In any event, CILT (B) The Relevant Sellers shall be entitled at any stage and at their sole absolute discretion to settle any such third party assessment or claim and shall notify any such decision to settle such other than a third party assessment or claim relating to the Purchaser as soon as practicable thereafterTax.
Appears in 1 contract
Samples: Master Business and Share Sale and Purchase Agreement (Sappi LTD)
Conduct of Litigation. 3.3.1. If the Purchaser considers that it will or may make a claim against CILT for breach of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then available, and for a period of 30 days after such notification shall afford CILT the opportunity to take steps to remedy the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser shall not be entitled to any compensation in respect thereof.
3.3.2. (A) Upon the Purchaser or any member of the Purchaser's Group becoming aware of any claim, action or demand against it or any other matter likely to give rise to any claim, action or demand in respect of these any of the warranties or in respect of the Warrantiesindemnities set out in clauses 7.12, 7.13, 7.15 and 8.2 and paragraph 5 of section 4 of the Properties Manual (the "Indemnities"), the Purchaser shall and shall procure that the appropriate member of the Purchaser's Group shall, subject to paragraph 15 of this Schedule:-:
a(i) forthwith as soon as practicable notify CILT the Seller by written notice as soon as it appears to the Purchaser that any assessment or claim of a third party received by or coming to the notice of the Purchaser or any member of the Purchaser's Group may result in a claim under the WarrantiesWarranties or the indemnities;
b(ii) subject to the Seller indemnifying the Purchaser and/or the relevant member of the Purchaser's Group in a form reasonably satisfactory to the Purchaser against any liability, cost, damage or expense which may be incurred thereby:
(a) subject to sub-paragraph (C) below, take such action and give such information and access to personnel, premises, chattels, documents and records to CILT the Seller and its professional advisers as CILT the Seller may reasonably requestrequest and the Seller shall be entitled to require any relevant company to take such action and give such information and assistance reasonably requested by the Seller in order to avoid dispute, resist, mitigate, settle, compromise, defend or appeal any claim in respect thereof or adjudication with respect thereto;
c(b) at the request of CILTthe Seller and subject to sub-paragraph (C) below, allow CILT, at CILT's sole expense, the Seller to take the sole conduct of such actions as CILT the Seller may deem appropriate in connection with any such assessment or claim in the name of the Purchaser or the relevant member of the Purchaser's Group and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, shall give or cause to be given to CILT the Seller all such assistance as CILT it may reasonably require in avoiding, disputing, resisting, settling, compromisescompromising, defending or appealing any such claim and shall instruct such solicitors or other professional advisers as CILT the Seller may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the Purchaser or the relevant member of the Purchaser's Group, as appropriate, but to act in accordance with CILTthe Seller's sole instructions; or;
d(c) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILTthe Seller; and
(iii) take all reasonable action to mitigate any loss suffered by it or any member of the Purchaser's Group in respect of which a claim could be made under the Warranties.
3.3.3. In (B) Subject to the Seller giving 3 Business Days' notice of its intention to settle any eventsuch third party assessment or claim and the proposed terms of any such settlement, CILT the Seller shall be entitled at any stage and at their sole its absolute discretion to settle any such third party assessment or claim at its sole cost and expense.
(C) Save in relation to third party claims which might give rise to a claim under the indemnities, the Seller shall notify not be entitled to unreasonably withhold or delay the consent referred to in sub-paragraph (A)(ii)(c) above and subparagraphs (A)(ii)(a) and (b) above shall not require the Purchaser to take, permit or omit, or procure the taking, permitting or omission of, any such decision step or action in relation to settle such assessment or any third party claim where the Purchaser can demonstrate to the Purchaser Seller (acting reasonably) that it is probable that the failure to give consent or, as soon as practicable thereafterthe case may be, the taking, permitting or omission of the relevant step or action would have an adverse effect on any trading relationship or the goodwill of a member of the Group or, in relation to any Business, the goodwill of the relevant member of the Purchaser's Group, which would be material to the Acquired Business.
(D) Save in relation to a breach of the notification obligation set out in paragraph (A)(i) above, breach of this paragraph 7 will give rise to a damages claim by the Seller but will not invalidate the applicable claim for breach of Warranty.
Appears in 1 contract
Samples: Business and Share Sale and Purchase Agreement (Rockwood Specialties Group Inc)
Conduct of Litigation. 3.3.1. If (a) The Buyer shall cooperate fully with the Purchaser considers that it will Seller in the prosecution or may make a claim against CILT for breach defense of Warranty, it shall as soon as practicable notify CILT in writing, giving such particulars thereof as are then availableany Action involving the Business Unit arising out of or relating to the Retained Liabilities or Excluded Assets, and shall consult and confer with the Seller with respect thereto, at no cost to the Seller, other than reimbursement of the Buyer’s out-of-pocket expenses; provided, however, that this Section 9.2 will not limit in any way the Buyer’s rights of indemnification pursuant to ARTICLE XIII.
(b) The Seller shall cooperate fully with the Buyer in the prosecution or defense of any Action involving the Business Unit arising out of or relating to the Assumed Liabilities, China Equity Capital or U.S. Assets, and shall consult and confer with the Buyer with respect thereto, at no cost to the Buyer, other than reimbursement of the Seller’s out-of-pocket expenses; provided, however, that this Section 9.2 will not limit in any way the Seller’s rights of indemnification pursuant to ARTICLE XIII.
(c) Each party shall make available to the other parties upon written request (i) personnel to assist the other parties in locating and obtaining any Books and Records in such party’s possession, and (ii) any of such party’s personnel whose assistance or participation is reasonably required in anticipation of or preparation for, or for depositions or testimony in, existing or future Actions or other matters in which a period party or any of 30 days after its Affiliates are involved. The party whose personnel is used pursuant to this Section 9.2(c) will be reimbursed by the party using such notification shall afford CILT personnel for the opportunity to take steps to remedy reasonable out-of-pocket expenses incurred by it in performing the matter giving rise to such claim. To the extent that the matter giving rise to such claim is remedied within such 30 days period, the Purchaser covenants contained in this Section 9.2(c).
(d) The provisions of this Section 9.2 shall not be entitled apply to any compensation in respect thereofdisputes between parties hereto or their Affiliates.
3.3.2. Upon the Purchaser becoming aware of any claim, action or demand against it or matter likely to give rise to any of these in respect of the Warranties, the Purchaser shall, subject to paragraph 15 of this Schedule:-
a) forthwith notify CILT by written notice as soon as it appears to the Purchaser that any assessment or claim of a third party received by or coming to the notice of the Purchaser may result in a claim under the Warranties;
b) take such action and give such information and access to personnel, premises, chattels, documents and records to CILT and its professional advisers as CILT may reasonably request;
c) at the request of CILT, allow CILT, at CILT's sole expense, to take the sole conduct of such actions as CILT may deem appropriate in connection with any such assessment or claim in the name of the Purchaser and in that connection the Purchaser shall, upon receiving such security for its costs as the Purchaser may reasonably request, give or cause to be given to CILT such assistance as CILT may reasonably require in avoiding, disputing, resisting, settling, compromises, defending or appealing any such claim and shall instruct such solicitors or other professional advisers as CILT may (with the Purchaser's consent, such consent not to be unreasonably withheld) nominate to act on behalf of the Purchaser, as appropriate, but to act in accordance with CILT's sole instructions; or
d) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of CILT.
3.3.3. In any event, CILT shall be entitled at any stage and at their sole discretion to settle any such third party assessment or claim and shall notify any such decision to settle such assessment or claim to the Purchaser as soon as practicable thereafter.
Appears in 1 contract
