Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim other than a Tax Claim is a result of or in connection with a claim by a third party (a “Third Party Claim”) then: 11.4.1 the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim; 11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed; 11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim; 11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses: (i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and (ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller; 11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals; 11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of: (i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall: (a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and (b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed); (ii) the Seller shall: (a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim; (b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group; (c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim; (d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and (e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim. 11.4.7 The covenants in this Clause 11.4 may be enforced: (i) by any Group Company against the Seller; and (ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000. 11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 4 contracts
Samples: Second Share Purchase Agreement (Brinks Co), Share Purchase Agreement (Brinks Co), Share Purchase Agreement (Brinks Co)
Conduct of Third Party Claims. 11.4.1 If the matter or circumstance that may give rise to a Claim claim against a Seller under this Agreement or any relevant Local Transfer Document for breach of any Seller’s Warranty (other than a Tax Claim Warranty) is a result of or in connection with a claim by a third party (a “Third Party Claim”) then:
11.4.1 (i) the Purchaser shall, to the extent shall as soon as reasonably practicable give written notice thereof to that Seller and subject to Applicable Law, thereafter shall provide that Seller with periodic updates upon reasonable request and shall consult with the that Seller so far as reasonably practicable in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the that Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and (ii) the Third Party Claim shall not be admitted, compromised, disposed of or settled without the written consent of the Seller, that Seller (such consent not to be unreasonably withheld or delayed;); and
11.4.3 (iii) subject to the that Seller indemnifying the Purchaser or other member of the Purchaser’s Group (including any Delayed Target Group Company) concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the any other members of the Purchaser’s Group shall, take such action as the that Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(iiprovided that this Clause 11.4.1(iii) shall give not apply where the Purchaser and claim by the relevant Group Company reasonable access third party relates to its premises and matters or circumstances referred to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct paragraph 4 or paragraph 9 of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, Schedule 13 and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and then have the right to examine and copy or photograph any assets, accounts, documents and records conduct the claim at its discretion (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilegeClauses 11.4.1(i) and 11.4.1(ii)), as provided that failure to give notice in accordance with Clause 11.4.1(i)(i) shall not affect the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf rights of the Purchaser or other member to make a relevant claim under this Agreement for breach of the Purchaser’s Group concerned but in accordance with the any Seller’s instructionsWarranty, provided except that the appointment failure shall be taken into account in determining the liability of that Seller for such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation claim to the Third Party Claim;
(b) without prejudice to its ability to defend extent that Seller establishes that the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement it is increased, or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnifyis not reduced, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of that failure.
11.4.2 Notwithstanding the Seller assuming conduct provisions of Clause 11.4.1, if a Third Party Claim may also give rise to an indemnity claim under Clause 8.1.2, the provisions of Clause 8.2.2 shall apply instead of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company11.4.1.
Appears in 3 contracts
Samples: Contribution Agreement, Contribution Agreement (Glaxosmithkline PLC), Contribution Agreement (Novartis Ag)
Conduct of Third Party Claims. 11.4.1 If the matter or circumstance that may give rise to a Claim other than a Tax Claim claim against the Seller under this Agreement for breach of any Seller’s Warranty is a result of or in connection with a claim by a third party (a “Third Party Claim”) then:
11.4.1 (i) the Purchaser shall, shall as soon as reasonably practicable give written notice thereof to the extent reasonably practicable Seller and subject to Applicable Law, thereafter shall provide the Seller with periodic updates upon reasonable request and shall consult with the Seller so far as reasonably practicable in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and (ii) the Third Party Claim shall not be admitted, compromised, disposed of or settled without the written consent of the Seller, Seller (such consent not to be unreasonably withheld or delayed;); and
11.4.3 (iii) subject to the Seller indemnifying the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the any other members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(iiprovided that this Clause 11.4.1(iii) shall give not apply where the Purchaser and claim by the relevant Group Company reasonable access third party relates to its premises and matters or circumstances referred to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct paragraphs 3 or 7 of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, Schedule 14 and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and then have the right to examine and copy or photograph any assets, accounts, documents and records conduct the claim at its discretion (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilegeClauses 11.4.1(i) and (ii)), as provided that failure to give notice in accordance with Clause 11.4.1(i) shall not affect the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf rights of the Purchaser or other member to make a relevant claim under this Agreement for breach of the Purchaser’s Group concerned but in accordance with the any Seller’s instructionsWarranty, provided except that the appointment of such adviser or advisers failure shall have been approved be taken into account in writing by determining the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice for such claim to Clause 10) not exceed the full extent the Seller establishes that the amount of the proposed settlement it is increased, or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred is not reduced as a result of such failure.
11.4.2 Notwithstanding the Seller assuming conduct provisions of Clause 11.4.1, if a Third Party Claim may also give rise to an indemnity claim under Clause 8.1.2, the provisions of Clause 8.2.2 shall apply instead of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company11.4.1.
Appears in 3 contracts
Samples: Sale and Purchase Agreement (Glaxosmithkline PLC), Sale and Purchase Agreement (Novartis Ag), Sale and Purchase Agreement (Novartis Ag)
Conduct of Third Party Claims. 12.4.1 If the matter or circumstance that may give rise to a Claim claim against the Seller under this Agreement or any Local Transfer Document for breach of any Seller’s Warranty (other than a Tax Claim Warranty) is a result of or in connection with a claim by a third party (a “Third Party Claim”) then:
11.4.1 (i) the Purchaser shall, shall as soon as reasonably practicable give written notice thereof to the extent reasonably practicable Seller and subject to Applicable Law, thereafter shall provide the Seller with periodic updates upon reasonable request and shall consult with the Seller so far as reasonably practicable in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and (ii) the Third Party Claim shall not be admitted, compromised, disposed of or settled without the written consent of the Seller, Seller (such consent not to be unreasonably withheld or delayed;); and
11.4.3 (iii) subject to the Seller indemnifying the Purchaser or other member of the Purchaser’s Group (including any Delayed Vaccines Group Company) concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the any other members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 , provided that this Clause 12.4.1(iii) shall not apply where the claim by the third party relates to matters or circumstances referred to in paragraph 4 or 9 of Schedule 18 and the Purchaser shall then have the right to conduct the claim at its discretion (subject to Clauses 12.4.1(i) and 12.4.1(ii)), provided that failure to give notice in accordance with Clause 12.4.1(i) shall not affect the rights of the Purchaser to make a relevant claim under this Agreement for breach of any Seller’s Warranty, except that the failure shall be taken into account in determining the liability of the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available for such claim to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, extent the Seller shall be entitled at its own expense and in its absolute discretionestablishes that the amount of it is increased, by notice in writing to or is not reduced, as a result of such failure.
12.4.2 Notwithstanding the Purchaserprovisions of this Clause 12.4, to assume conduct of any if a Third Party Claim and may give rise to have a claim against the Seller under Clause 8.1.2, the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser such Third Party Claim shall be dealt with pursuant to Clause 11.4.5 8.2.2 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser Clause 12.4.1 shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claimapply.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 2 contracts
Samples: Share and Business Sale Agreement (Glaxosmithkline PLC), Share and Business Sale Agreement (Novartis Ag)
Conduct of Third Party Claims. If the matter 6.1 The Seller may elect to have conduct of any negotiations with third parties or circumstance that may give rise to a Claim other than a Tax Claim is a result of or litigation in connection with a claim any claim, action or demand by a third party (which gives rise to an obligation on the Buyer to give notice under paragraph 2. The Seller shall make such election only by service of notice on the Buyer on or before the date falling 20 Business Days after the date of receipt of the notice from the Buyer under paragraph 2 or if no such notice is given by the Buyer or before the date falling 20 Business Days after the Seller first becomes aware of the claim, action or demand.
6.2 If the Seller serves a “Third Party Claim”) thennotice under paragraph 6.1 the Buyer shall at the Seller’s cost:
11.4.1 the Purchaser shall6.2.1 take such action and initiate such proceedings, to the extent reasonably practicable and upon request, and subject always to Applicable Lawany confidentiality obligations or the preservation of any rights of legal privilege, consult with give such information and assistance, as the Seller may from time to time reasonably request to dispute, resist, appeal, compromise, defend, remedy or mitigate the matter in question or enforce against any person (other than the Seller) the rights of the Buyer or the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action matter in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claimquestion; and
(ii) 6.2.2 in connection with any proceedings related to the matter in question use professional advisers nominated by the Seller. The Buyer shall give have no obligations under paragraphs 6.1 to 6.3 if the Purchaser Warranty Claim relates to a breach or alleged breach of the regulatory requirements referred to in the Warranties in paragraph 1 of Part 3 of schedule 2, or of any of the legal and regulatory requirements referred to in clause 8.11.2 or where the relevant Buyer reasonably believes that to comply with the provisions of paragraphs 6.1 to 6.3 would be materially detrimental to the interests of any Group Company reasonable access to its premises and to its books and records for such purpose during normal or of the business hours on of any Business Day following reasonable notice being given to the Seller;Group Company in any relevant jurisdiction.
11.4.5 subject to 11.4.3, 6.3 Whether or not the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends serves a notice to under paragraph 6.1 the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser Buyer shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking Seller as soon as reasonably practicable with regard to any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group actual or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters proposed developments relating to the Third Party Claim matter in question and shall promptly forward upon request, and subject always to any confidentiality obligations or procure to be forwarded to the Purchaser preservation of any rights of legal privilege, provide the Seller with copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating in relation to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claimmatter.
11.4.7 The covenants 6.4 References in this Clause 11.4 may be enforced:
(i) by paragraph 6 to any Group Company claim, action or demand against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser Buyer or a Group Company, under Company include the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent assertion of any Group Companyright to the same, including a right of termination.
Appears in 2 contracts
Samples: Sale and Purchase Agreement, Agreement for the Sale and Purchase of Shares (Coinstar Inc)
Conduct of Third Party Claims. 7.1 If the matter or circumstance that may give rise to a Claim other than a Tax Claim is a result Purchaser becomes aware of or in connection with a any claim by a third party (a “Third Party Claim”) then:
11.4.1 after Completion which is likely to result in a Claim (other than a Claim under the Tax Warranties), the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct shall promptly give notice of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation Vendors and, subject to the Third Party Claim shall be made by or on behalf Purchaser and each member of the Purchaser or any member of Group being indemnified and secured to the Purchaser’s Group and reasonable satisfaction by the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned Vendors against all reasonable costs and expenses (expenses, including those of its legal and professional costs and expenses) that may be advisers, incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim as a result of, or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shallin connection with, doing any such thing, shall and the Purchaser shall procure that any member of the Purchaser’s Group Companies shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any knowing admission of liability, liability or make any agreement or compromise in relation to that Third Party Claim without the prior written approval consent of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party ClaimVendors;
(b) without prejudice give such information and access to personnel, premises, chattels, documents and records (which the Purchaser shall procure are preserved) to the Vendors and their professional advisers as any Vendor may reasonably request and all such assistance as any Vendor (or their professional advisers) may reasonably require; and
(c) (subject to the Purchaser being entitled to engage its ability own legal advisers) take such action as the Vendors may reasonably request to avoid, resist, dispute, appeal, compromise, remedy or defend the that Third Party Claim, conduct except where, in the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent reasonable opinion of the Purchaser, such consent not action would be materially prejudicial to be unreasonably withheld, conditioned or delayed. If the business of the Purchaser or member any of the Purchaser’s Group fails Companies, would be misleading or inaccurate in any material respect or would materially affect the future liability to consent Tax of any Group Company (provided that (the “Proviso Exception”) in such circumstances the Vendors shall not be obliged to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and indemnify the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses incurred in relation to such Third Party Claim (including legal and professional costs and expenses) that but provided that, for the avoidance of doubt, the Proviso Exception shall not operate to release any Vendor from any liability it may be incurred as a result have under any Claim arising out of such Third Party Claim).
7.2 The rights of the Seller assuming conduct Vendors under paragraph 7.1 shall only apply to a Third Party Claim if a Vendor gives notice to the Purchaser in writing of its intention to exercise its rights within 20 Business Days of the Purchaser giving notice of the Third Party Claim.
11.4.7 The covenants . If neither Vendor gives notice during that period, the Purchaser shall be entitled in this Clause 11.4 may be enforced:
(i) by its absolute discretion to settle, compromise, or resist any Group Company action, proceedings or claim against the Seller; and
(ii) by any member of the Seller’s Purchaser Group against the Purchaser or a Group Company, under the Contracts (Rights out of which that Third Parties) Xxx 0000Party Claim arises.
11.4.8 7.3 The provisions Purchaser shall not be precluded from bringing any Claim under this Agreement by reason of any breach of the terms of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Companyparagraph 7.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Actavis PLC)
Conduct of Third Party Claims. If the matter or circumstance that may is reasonably likely to give rise to a Warranty Claim (other than a Tax Claim Warranty Claim) is a result of or in connection with a claim by or liability to a third party party, whether such claim or liability is actual, alleged, threatened, suspected or potential, and whether relied upon by Mergeco in bringing or supporting such Warranty Claim (a “Third Party Claim”) ), then:
11.4.1 14.5.1 Mergeco shall notify the Purchaser shall, to the extent Claimed Party in writing of such Third Party Claim as soon as reasonably practicable and subject to Applicable Law, practicable;
14.5.2 Mergeco shall consult with the Seller Claimed Party so far as reasonably practicable in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller Claimed Party before taking any action in relation to the Third Party Claim;
11.4.2 14.5.3 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser Mergeco (or any member of the Purchaser’s Three UK Group Company or any Vodafone UK Group Company (as applicable)) and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, Claimed Party (such consent not to be unreasonably withheld or delayed;delayed);
11.4.3 14.5.4 subject to the Seller Claimed Party indemnifying the Purchaser Mergeco in a form reasonably satisfactory to Mergeco against any liability, cost, damage or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that expense which may be properly incurred therebyor, as the Purchaser shallcase may be, properly increased, Mergeco shall (or the Purchaser shall procure that the members of relevant Three UK Group Company or the Purchaser’s relevant Vodafone UK Group Company (as applicable) shall, ) take such action as the Seller Claimed Party may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 14.5.5 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Claimed Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the PurchaserMergeco, to assume conduct of any take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim (including making counterclaims or other claims against third parties) in the name of and on behalf of Mergeco (or the relevant Three UK Group Company or the relevant Vodafone UK Group Company concerned (as applicable)) and to have the conduct of any related proceedings, negotiations or appeals;; and
11.4.6 14.5.6 if the Seller Claimed Party sends a notice to the Purchaser Mergeco pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:14.5.5:
(i) the Purchaser shall, Mergeco shall (and the Purchaser shall procure that any member of the Purchaser’s relevant Three UK Group Company or Vodafone UK Group Company (as applicable) shall:):
(a) give, subject to their being paid reimbursed by the Claimed Party (on an after-Tax basis) for all reasonable costs and expenses, all such information and assistance (including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), records) as the Seller Claimed Party may reasonably request, including instructing such professional or legal advisers as the Seller Claimed Party may nominate to act on behalf of Mergeco (or the Purchaser relevant Three UK Group Company or other member of the Purchaser’s Vodafone UK Group Company concerned (as applicable)) but in accordance with the SellerClaimed Party’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission be entitled to participate in the defence of liability, agreement or compromise in relation to that the Third Party Claim without Claim, and to employ its own professional or legal advisers, provided that the prior written approval Claimed Party shall control the conduct of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);Third Party Claim; and
(ii) the Seller Claimed Party shall:
(a) consult with the Purchaser Mergeco and take reasonable account of the views of the Purchaser Mergeco before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser Mergeco informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser Mergeco copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(dc) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the PurchaserMergeco, such consent not to be unreasonably withheld, conditioned withheld or delayed. If the Purchaser or member of the Purchaser’s Group Subject to Clause 14.5.7, if Mergeco unreasonably fails to consent to a settlement or compromise, the maximum liability of the Seller Claimed Party shall (without prejudice to Clause 1012) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; andand
(ed) indemnify, save as set out in Clause 11.4.6(ii)(d14.5.6(ii)(c), Mergeco (or the Purchaser relevant Three UK Group Company or other member of the Purchaser’s relevant Vodafone UK Group Company concerned (as applicable)) against all reasonable properly incurred costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller Claimed Party assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 . 14.5.7 Notwithstanding Clauses 14.5.3 to 14.5.6, neither Mergeco (nor the relevant Three UK Group Company nor the relevant Vodafone UK Group Company (as applicable)) shall be required to take any action or refrain from taking any action if Mergeco (or the relevant Three UK Group Company or the relevant Vodafone UK Group Company concerned (as applicable)) reasonably considers such action or omission may be enforced:unduly onerous or materially prejudicial to it or to its business. 15 [***] 16 Post-Closing
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.16.1 [***]
Appears in 2 contracts
Samples: Contribution Agreement, Contribution Agreement
Conduct of Third Party Claims. If the matter or circumstance that may is reasonably likely to give rise to a Claim claim against a Seller under any Share Purchase Document (excluding the Tax Covenant) for breach of any Warranty (other than a Tax Claim Warranty) is a result of or in connection with a claim by a third party (a “Third Party Claim”) then:
11.4.1 the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of (A) the Purchaser or any other Seller shall as soon as reasonably practicable give written notice thereof to that relevant Seller (with copy to the other Seller);
(B) the Sellers shall procure that the Purchaser shall provide such reasonable information and access during Working Hours to personnel, premises, books, records and documents (including in electronic form but excluding access to legally privileged information or which would result in a breach of applicable law) to the relevant Seller or other member of the Purchaserrelevant Seller’s Retained Group and their professional advisors as the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayedrelevant Seller may reasonably request;
11.4.3 (C) subject to the relevant Seller indemnifying and holding harmless the Purchaser or member of (or, as the Purchaser’s Group concerned case may be, the other Seller) against all reasonable costs and expenses (including legal and professional costs and expenses) that may be suffered or incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and to take the sole conduct of such claims, actions or demands as the relevant Seller may deem appropriate in its absolute discretion, by notice in writing to the name of the Purchaser, provided that the relevant Seller has consulted with the Purchaser prior to assume conduct of any Third Party Claim doing so, and in that connection the shall give or cause to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice be given to the Purchaser pursuant to Clause 11.4.5 relevant Seller all such assistance as it may reasonably require in avoiding, disputing, resisting, settling, compromising, defending or appealing any such claim, action or demand and until shall instruct such time solicitors or other professional advisers as any final compromise, agreement, expert determination that the relevant Seller or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any such other member of the Purchaserrelevant Seller’s Retained Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser Purchaser, as appropriate, but to act in accordance with the instructions of the relevant Seller or other member of the Purchaser’s Group concerned but in accordance with the relevant Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by Retained Group;
(D) the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not shall make any no admission of liability, agreement agreement, settlement or compromise with any third party in relation to that Third Party Claim any such claim, action or demand or adjudication without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, relevant Seller such consent not to be unreasonably withheld, conditioned withheld or delayed. If ;
(E) the relevant Seller shall be entitled at any stage and at its absolute discretion to settle any such third party assessment or claim and shall be under no obligation to notify or consult the Purchaser prior to doing so provided such settlement is without admission of any wrongdoing or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (and without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded limitations in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromisethis Schedule 4; and
(eF) indemnify, save as set out in Clause 11.4.6(ii)(d), any failure by the Purchaser to comply with the provisions of this paragraph 4.4 shall not prevent any claim by the Purchaser or other member extinguish any liability of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that relevant Seller under the Warranty in question but may be incurred as a result taken into account in calculating any such liability of the relevant Seller assuming conduct of to the Third Party Claimextent that the relevant Seller establishes that such liability is increased or is not reduced by such failure.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 2 contracts
Samples: Contribution and Transfer Agreement (Liberty Global PLC), Contribution and Transfer Agreement (Liberty Global PLC)
Conduct of Third Party Claims. If the matter 15.1 Except for any Tax contests described in and governed by Clause 19.5, if a Buyer or circumstance that may give rise to a Claim other than a Tax Claim is a result any of Buyers’ Affiliates becomes aware of any claim or in connection with a potential claim against it by a third party another person (a “Third Party Claim”) then:
11.4.1 the Purchaser shall, which is reasonably likely to the extent reasonably practicable and subject lead to Applicable Law, consult with the a claim against Seller and/or Altor as set forth in Clause 13.1.3(a) through (e) or in relation to the conduct any of the Third Party Claim specific indemnities set forth in Clause 14, Buyers shall and shall take reasonable account procure that their Affiliates (as applicable) shall:
15.1.1 as soon as reasonably practicable give Seller and Altor notice in writing of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 15.1.2 make no admissions in relation admission of liability or settle or compromise the Third Party Claim without prior consultation with Seller and Altor;
15.1.3 for the duration of the Third Party Claim provide Seller, Altor and their advisers with such information relating to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller they may reasonably request (including reasonable access to premises and personnel on reasonable notice);
15.1.4 take such actions as Seller or Altor may reasonably request in order to avoid, defend, dispute, deny, defend, resistmitigate, appeal, settle or compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and save that the relevant Group Company such persons and all such information as Buyer or the Purchaser relevant Buyers’ Affiliate may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claimemploy its own professional advisers; and
(ii) shall give the Purchaser 15.1.5 each of Seller and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller Altor shall be entitled at its own expense and in its absolute discretion, by notice in writing to Buyer, and to the Purchaserextent such Third Party Claim relates to the ordinary course of the Transferred Business (except for any Excluded Loss) subject to Seller and/or Altor confirming in such notice that Seller and/or Altor are liable for such Third Party Claim pursuant to the terms of this Agreement, to assume conduct take any action in order to avoid, defend, dispute, mitigate, appeal, settle or compromise the Third Party Claim in the name of and on behalf of any Acquired Company concerned and such Acquired Company shall, at the request by Seller or Altor, issue any powers of attorney reasonably required or convenient for the purpose of taking any such action in the name of and on behalf of such Acquired Company. For the avoidance of doubt, Seller and Altor shall always be entitled at its own expense and in its absolute discretion, by notice in writing to Buyer, to take any action in order to avoid, defend, dispute, mitigate, appeal, settle or compromise any Third Party Claim relating to an Excluded Loss in the name of and to have the conduct on behalf of any related proceedingsAcquired Company concerned and such Acquired Company shall, negotiations at the request by Seller or appeals;Altor, issue any powers of attorney reasonably required or convenient for the purpose of taking any such action in the name of and on behalf of such Acquired Company.
11.4.6 if the Seller sends a notice 15.2 Notwithstanding anything to the Purchaser pursuant contrary in this Clause 15, failure by Buyers to comply with the provisions in this Clause 11.4.5 15 shall only reduce Seller’s and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Altor’s liability to compensate Buyers for the relevant Third Party Claim if and to the extent such failure has prejudiced Seller’s or that Altor’s rights or increased the Loss.
15.3 The obligations of Buyers and their Affiliates under Clauses 15.1.2 through 15.1.5 shall not apply to a Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject except for a Third Party Claim relating to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excludingan Excluded Loss if, in each casethe reasonable opinion of Buyers, information their performance would require a Buyer, any Buyers’ Affiliate or documents Acquired Company to do or omit to do any act or thing which are protected by legal professional privilege but includingact or omission would cause a liability or otherwise have an adverse effect for Buyers, any Buyers’ Affiliate and/or any Acquired Company to an amount equal to or exceeding a USD 1,000,000 in each case, information or documents that are subject addition to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise Loss incurred in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 2 contracts
Samples: Share Sale and Purchase Agreement, Share Sale and Purchase Agreement (Ampco Pittsburgh Corp)
Conduct of Third Party Claims. 14.2.1 If the matter or circumstance that may give rise to CEO of the Buyer or, following [***] after their appointment, the chief legal officer of the Buyer becomes aware of a Claim claim in writing by a Third Party other than a Third Party Tax Claim is a result of or in connection with a claim by a third party (a the “Third Party Claim”) thenwhich might be reasonably expected to result in a Warranty Claim or Indemnity Claim being made, the Buyer shall:
11.4.1 (a) give the Purchaser shall, Seller written notice of such Third Party Claim as soon as reasonably practicable (and in any event within [***] of the CEO of the Buyer or the chief legal officer of the Buyer (to the extent reasonably practicable it occurs following [***] after their appointment) becoming aware of such written Third Party Claim together with relevant documentation and subject information actually available to Applicable Law, the Buyer in relation thereto as at the date of such notice; provided that any such notice shall not be deemed to constitute a notice under Clause 13.1.1 unless the Buyer otherwise specifies;
(b) consult with the Seller in relation as to the manner in which such Third Party Claim might be avoided, resolved or compromised, giving all reasonable weight and consideration to proposals for the same made by the Seller; and
(c) subject to consultation and the provision of information to the Seller set out in this Clause 14.2 above, retain conduct of the such Third Party Claim and shall take reasonable account of the views of the Seller before act reasonably and in good faith in taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest Third Party Claim (including making counterclaims or other claims against third parties).
14.2.2 If the Buyer would be entitled to make a Warranty Claim or Indemnity Claim as a result of, or in connection with, a Third Party Claim;
11.4.4 , then the Seller Buyer shall not, and shall procure that no other member of the Buyer’s Group shall, subject admit liability in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company respect of such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) , and shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for procure that such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct shall not be compromised, disposed of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shallsettled without:
(a) give, subject the Buyer giving written notice to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably requestof the intention to admit, including instructing compromise, dispose or settle such professional or legal advisers as Third Party Claim, such notice to contain reasonable details of such Third Party Claim to the extent not already provided to the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with Clause 14.2.1(a);
(b) the Seller’s instructions, provided that Buyer promptly providing such further details of the appointment of such adviser or advisers shall have been approved in writing Third Party Claim as may be reasonably requested by the Purchaser (such approval not Seller for the purposes of developing proposals referred to be unreasonably withheld, conditioned or delayedin Clause 14.2.2(c); and
(bc) not make any admission the Buyer giving all reasonable weight and consideration to proposals of liability, agreement or compromise in relation the Seller with respect to that such Third Party Claim without which may be provided by the prior written approval Seller within [***] from receipt of the Seller (notice referred to in Clause 14.2.2(a) or such approval not shorter period as the Buyer may notify to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation as is required to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim comply with a view to minimising any material harm to the goodwill and reputation of the Wider Group procedural order or the Purchaser’s Group;
(c) keep the Purchaser informed rules of all relevant matters relating to the Third Party Claim and shall promptly forward procedure of a court or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with arbitral tribunal considering such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 2 contracts
Samples: Agreement for the Sale and Purchase of the Issued Share Capital (Yandex N.V.), Agreement for the Sale and Purchase of Shares (Yandex N.V.)
Conduct of Third Party Claims. 15.13.1 If the matter CEO or circumstance that may give rise to chief legal officer of the Seller becomes aware of a Claim other than a Tax Claim is a result of or in connection with a claim by a third party (a “written Third Party Claim”) thenClaim which might be reasonably expected to result in a Seller Claim under a Buyer Warranty being made, the Seller shall:
11.4.1 (a) give the Purchaser shall, to the extent Buyer written notice of such Third Party Claim as soon as reasonably practicable (and subject in any event within [***] of the CEO or chief legal officer of the Seller becoming aware of such written Third Party Claim together with relevant documentation and information actually available to Applicable Law, consult with the Seller in relation thereto as at the date of such notice; provided that any such notice shall not be deemed to constitute a notice under Clause 15.1.1 unless the Seller otherwise specifies;
(b) consult with the Buyer as to the manner in which such Third Party Claim might be avoided, resolved or compromised, giving all reasonable weight and consideration to proposals for the same made by the Buyer; and
(c) subject to consultation and the provision of information to the Buyer set out in this Clause 15.13.1 above, retain conduct of the such Third Party Claim and shall take reasonable account of the views of the Seller before act reasonably and in good faith in taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations (including making counterclaims or appeals;other claims against third parties).
11.4.6 if 15.13.2 If the Seller sends would be entitled to make a notice to the Purchaser pursuant to Clause 11.4.5 and until such time Seller Claim under a Buyer Warranty as any final compromisea result of, agreementor in connection with, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of then the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise not, and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or procure that no other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Companyshall, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any admit liability in respect of rights such Third Party Claim, and shall procure that such Third Party Claim shall not be compromised, disposed of or claims contemplated settled without:
(a) the Seller giving written notice to the Buyer of the intention to admit, compromise, dispose or settle such Third Party Claim, such notice to contain reasonable details of such Third Party Claim to the extent not already provided to the Seller in accordance with Clause 15.13.1(a);
(b) the Seller promptly providing such further details of the Third Party Claim as may be reasonably requested by this the Buyer for the purposes of developing proposals referred to in Clause 11.415.13.1(c); and
(c) without the consent Seller giving all reasonable weight and consideration to proposals of any Group Companythe Buyer with respect to such Third Party Claim which may be provided by the Buyer within [***] from receipt of the notice referred to in Clause 15.13.2(a) or such shorter period as the Seller may notify to the Buyer as is required to comply with a procedural order or the rules of procedure of a court or arbitral tribunal considering such Third Party Claim.
Appears in 2 contracts
Samples: Agreement for the Sale and Purchase of the Issued Share Capital (Yandex N.V.), Agreement for the Sale and Purchase of Shares (Yandex N.V.)
Conduct of Third Party Claims. If 10.1 Subject to Clause 10.5, the matter Purchaser shall promptly notify the Seller if an action, claim, demand or circumstance that proceedings with respect to which the Seller may give rise to a Claim other than a Tax Claim be liable under this Agreement is a result of asserted or in connection with a claim announced by a any third party in relation to the Businesses (a “Third Party Claim”) then:
11.4.1 and provided that the Seller notifies the Purchaser shall, in writing that it wishes to conduct the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct defence of the Third Party Claim and shall take reasonable account within 10 Business Days of the views being notified of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as allow the Seller and its professional advisers to investigate the matter or circumstance alleged to give rise to such claim and shall give all reasonable assistance (subject only to it being specifically indemnified and secured to its satisfaction against any costs, loss or expense which it may reasonably request to avoidincur), dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
including (i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(ireasonable notice) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller or its professional advisers may reasonably request, including instructing such professional .
10.2 In connection with a Third Party Claim no admission of liability shall be made by or legal advisers as the Seller may nominate to act on behalf of the Purchaser and the claim shall not be compromised, disposed of or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim settled without the prior written approval consent of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned withheld or delayed. If the Purchaser or member of ).
10.3 The Seller undertakes that it shall meet in full, without recourse to the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise such Third Party Claim and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable whole costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Purchaser in defending the same including without prejudice thereto any professional or other costs incurred by any or each of them in being advised with regard thereto and the Seller assuming shall from time to time and forthwith upon the request of the Purchaser keep the Purchaser fully informed of its conduct of and any negotiations relating to the defence of such Third Party Claim.
11.4.7 The covenants 10.4 If the Seller has informed the Purchaser in this Clause 11.4 writing that it does not wish to defend a Third Party Claim, the Purchaser may be enforced:
(i) by take such action as the Purchaser sees fit with regard thereto without prejudice to any Group Company against the Seller; and
(ii) by any member other rights or remedies of the SellerPurchaser under this Agreement in relation to such Claim.
10.5 The Purchaser may elect not to notify the Seller under Clause 10.1 and allow the Seller the opportunity to conduct the defence of a Third Party Claim if, in the Purchaser’s Group against opinion, such conduct would prejudice the business interests or reputation of the business of the Purchaser or a Group Companyprovided however that, if the Purchaser so elects, then the Seller shall cease to be liable for any Loss in relation to such Third Party Claim under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company10.
Appears in 2 contracts
Samples: Business Sale Agreement, Business Sale Agreement (MSX International Inc)
Conduct of Third Party Claims. 4.1 If the matter or circumstance that may give rise to a Claim other than a Tax Claim is a result Buyer becomes aware of or in connection with a any claim by a third party (a “Third Third-Party Claim”) then:
11.4.1 after Completion which is likely to result in a Warranty Claim, the Purchaser shall, Buyer shall promptly give notice of the Third-Party Claim to the extent reasonably practicable and subject to Applicable LawWarrantors’ Representative and, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying Buyer and each of its Affiliates being indemnified to the Purchaser or member of Buyer’s reasonable satisfaction in writing by the Purchaser’s Group concerned Warrantors against all reasonable costs and expenses (expenses, including those of its legal and professional costs and expenses) that may be advisers, incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shallClaim, shall and the Purchaser shall procure that any member of the Purchaser’s Group Acquired Companies shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) 4.1.1 not make any knowing admission of liability, liability or make any agreement or compromise in relation to that Third Party Claim without prior consultation with the prior written approval Warrantors’ Representative; and
4.1.2 (subject to the Warrantors having accepted liability to the Buyer in respect of the Seller (Warranty Claim in writing and the Buyer being entitled to engage its own legal advisers) take such approval not action as the Warrantors’ Representative may reasonably request to be unreasonably withheldavoid, conditioned resist, dispute, appeal, compromise, remedy or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the that Third Party Claim, conduct except where, in the Third reasonable opinion of the Buyer, such action would be materially prejudicial to the business of the Buyer or any of the Acquired Companies or would be misleading or inaccurate in any material respect.
4.2 The rights of the Warrantors’ Representative under this paragraph 4 of this Schedule 2 shall only apply to a Third-Party Claim with a view to minimising any material harm if the Warrantors’ Representative gives notice to the goodwill and reputation Buyer in writing of its intention to exercise its rights within 10 Business Days of the Wider Group or Buyer giving notice of the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including nonThird-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser Warrantors’ Representative does not give notice during that period, the Buyer shall be entitled in its absolute discretion to settle, compromise, or member resist any action, proceedings or claim against the Buyer, its Affiliates or any of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability Acquired Companies out of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) which that may be incurred as a result of the Seller assuming conduct of the Third Third-Party ClaimClaim arises.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 2 contracts
Samples: Implementation and Management Warranty Deed (Vonage Holdings Corp), Management Warranty Deed (Vonage Holdings Corp)
Conduct of Third Party Claims. 12.4.1 If the fact, matter or circumstance that may give rise to a Claim other than a Tax Claim claim under the Seller Warranties or Clause 5 is a result of or in connection with a claim by a third party (including any regulator, government or governmental authority or Tax Authority) (a “Third Party Claim”) then:
11.4.1 the Purchaser shall, then to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of that the Purchaser or any member of the Purchaser’s Group and the is involved directly in such Third Party Claim Claim:
12.4.2 the Purchaser shall not be compromisedconsult with the relevant Business Seller as regards the conduct of any proceedings arising out of such third party claim, disposed of or settled without the written consent taking into consideration any reasonable request of the Seller, such consent not to be unreasonably withheld or delayedSeller in connection with the claim;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, 12.4.3 the Purchaser shall, or the Purchaser shall procure that the members relevant member of the Purchaser’s Group shall, conduct such claim in a manner which is consistent, in all material respects, with the manner in which the Purchaser (or, as the case may be, the relevant member of the Purchaser’s Group) would, at the relevant time, conduct any Purchaser Third Party Claim; and
12.4.4 the Purchaser shall, to the extent permitted by any Law and Regulations, take such action as the Seller Business Sellers may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise compromise, settle, defend or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of mitigate any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice subject to the Purchaser pursuant being indemnified on an after-Tax basis by the Business Sellers against all Losses which may thereby be incurred and provided that the Purchaser shall not be required to Clause 11.4.5 and until such time take any action which is not consistent in any material respect with the manner in which the Purchaser (or, as the case may be, the relevant member of the Purchaser’s Group) would, at the relevant time, conduct any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Purchaser Third Party Claim or that Third Party Claim is otherwise finally disposed of:Claim. Without limitation to the foregoing (and subject to applicable Law and Regulations):
(i) the Purchaser shall, and the Purchaser shall procure that any member other relevant members of the Purchaser’s Group shall, allow the Business Sellers and their financial, accounting, tax or legal advisers reasonable access to allow them to investigate the fact, matter or circumstance alleged to (or which may) give rise to such Third Party Claim and whether and to what extent any amount is or may be payable in respect of such claim;
(ii) the Purchaser shall, and shall procure that any other relevant members of the Purchaser’s Group shall, disclose to the Business Sellers all material of which it/they are aware which relates to such Third Party Claim and shall, subject to their being paid all reasonable out of pocket costs and expenses, give all such information and assistance, including:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnelpersonnel (including any Relevant Employee with knowledge relating to the relevant facts, matters or circumstances or who can otherwise reasonably assist the Business Sellers);
(b) making such personnel available for factual interviews, preparation for testimony, giving evidence, producing affidavits and other similar activities; and
(c) the right to examine and copy or photograph any assets, accounts, correspondence, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege)records, as the Seller Business Sellers or their financial, accounting or legal advisers may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of ; and
(iii) the Purchaser or shall, and shall procure that any other member members of the Purchaser’s Group concerned but in accordance with the Seller’s instructionsshall, provided at all times take all reasonable steps to maintain any legal privilege that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise exists in relation to that Third Party Claim without the prior written approval any information referred to in this Clause 12.4.4 (including books of the Seller (such approval not to be unreasonably withheldaccount, conditioned or delayed);
(iirecords and correspondence) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation relevant to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants Nothing in this Clause 11.4 may be enforced:
(i) by 12.4.4 shall entitle any Group Company against the Seller; and
(ii) by Business Seller or its advisers to have access to any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability information which relates to legal advice in respect of rights or claims contemplated by this Clause 11.4) without any claim for breach of the consent of any Group CompanyTransaction Documents.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Royal Bank of Scotland Group PLC)
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim other than a Tax Claim claim against the Sellers under this Agreement is a result of or in connection with a claim by or liability to a third party (a “Third Party Claim”) then, without prejudice to the rights of the insurers of the Purchasers’ Group:
11.4.1 the Purchaser shall, 12.5.1 subject to the extent reasonably practicable and subject to Applicable Law, consult with Sellers indemnifying the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by Purchasers or on behalf of the Purchaser or any other member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Purchasers’ Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred therebyLosses, the Purchaser Purchasers shall, or the Purchaser Purchasers shall procure that the any other members of the Purchaser’s Purchasers’ Group shall, take such action as the Principal Seller may reasonably (in the context of an ongoing business) request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claimsuch claim;
11.4.4 12.5.2 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller Sellers shall be entitled at its their own expense and in its their absolute discretion, by notice in writing to the Principal Purchaser, to assume conduct take such action as may be reasonable (in the context of any Third Party Claim an on-going business) to avoid, dispute, deny, defend, resist, appeal, compromise or contest such claim or liability (including, without limitation, making counterclaims or other claims against third parties) in the name of and on behalf of the Purchasers or other member of the Purchasers’ Group concerned and to have the conduct of any related proceedings, negotiations or appeals provided that the Sellers shall keep the Purchasers fully informed at all material stages of such proceedings, negotiations or appeals;
11.4.6 if 12.5.3 the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser Purchasers or other member of the Purchaser’s Purchasers’ Group concerned but in accordance with the Seller’s instructionsmay not admit, provided that the appointment compromise, dispose of or settle such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member Principal Seller on behalf of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromiseSellers; and
(e) indemnify, save as set out in 12.5.4 if the Sellers make any request pursuant to Clause 11.4.6(ii)(d)12.5.1, the Purchaser or Purchasers shall, and the Purchasers shall procure that any other member members of the Purchaser’s Purchasers’ Group concerned against shall, take all reasonable costs steps to procure that the Sellers are provided on reasonable notice with all material correspondence and expenses (including legal documentation relating to the claim as the Sellers may reasonably request. The Sellers agree to keep all such correspondence and professional costs information confidential and expenses) that may be incurred as a result to use it only for the purpose of dealing with the Seller assuming conduct of the Third Party Claimrelevant claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Intercontinental Hotels Group PLC /New/)
Conduct of Third Party Claims. 11.2.1 If the matter or circumstance that may give rise to chief legal officer of the Buyer becomes aware of a Claim claim in writing by a Third Party other than a Third Party Tax Claim is a result of or in connection with a claim by a third party (a the “Third Party Claim”) thenwhich might be reasonably expected to result in a Warranty Claim or Indemnity Claim being made, the Buyer shall:
11.4.1 (a) give the Purchaser shall, Seller written notice of such Third Party Claim as soon as reasonably practicable (and in any event within [***] of the chief legal officer of the Buyer becoming aware of such written Third Party Claim) together with relevant documentation and information actually available to the extent reasonably practicable and subject Buyer in relation thereto as at the date of such notice; provided that any such notice shall not be deemed to Applicable Law, constitute a notice under Clause 10.1.1 unless the Buyer otherwise specifies;
(b) consult with the Seller in relation as to the manner in which such Third Party Claim might be avoided, resolved or compromised, giving all reasonable weight and consideration to proposals for the same made by the Seller; and
(c) subject to consultation and the provision of information to the Seller set out in this Clause 11.2 above, retain conduct of the such Third Party Claim and shall take reasonable account of the views of the Seller before act reasonably and in good faith in taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest Third Party Claim (including making counterclaims or other claims against third parties).
11.2.2 If the Buyer would be entitled to make a Warranty Claim or Indemnity Claim as a result of, or in connection with, a Third Party Claim;
11.4.4 , then the Seller Buyer shall not, and shall procure that no other member of the Buyer’s Group shall, subject admit liability in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company respect of such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) , and shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for procure that such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct shall not be compromised, disposed of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shallsettled without:
(a) give, subject the Buyer giving written notice to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably requestof the intention to admit, including instructing compromise, dispose or settle such professional or legal advisers as Third Party Claim, such notice to contain reasonable details of such Third Party Claim to the extent not already provided to the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with Clause 11.2.1(a);
(b) the Seller’s instructions, provided that Buyer promptly providing such further details of the appointment of such adviser or advisers shall have been approved in writing Third Party Claim as may be reasonably requested by the Purchaser (such approval not Seller for the purposes of developing proposals referred to be unreasonably withheld, conditioned or delayedin Clause 11.2.2(c); and
(bc) not make any admission the Buyer giving all reasonable weight and consideration to proposals of liability, agreement or compromise in relation the Seller with respect to that such Third Party Claim without which may be provided by the prior written approval Seller within [***] from receipt of the Seller (notice referred to in Clause 11.2.2(a) or such approval not shorter period as the Buyer may notify to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation as is required to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim comply with a view to minimising any material harm to the goodwill and reputation of the Wider Group procedural order or the Purchaser’s Group;
(c) keep the Purchaser informed rules of all relevant matters relating to the Third Party Claim and shall promptly forward procedure of a court or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with arbitral tribunal considering such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If (a) A party entitled to indemnification hereunder (each, an "Indemnified Party") shall give written notice to the matter or circumstance that may give party indemnifying it (the "Indemnifying Party") of any claim with respect to which it seeks indemnification promptly after the discovery by such Indemnified Party of any matters giving rise to a Claim other than a Tax Claim is a result claim for indemnification; provided that the failure of or in connection with a claim by a third party (a “Third any Indemnified Party Claim”) then:
11.4.1 to give notice as provided herein shall not relieve the Purchaser shall, Indemnifying Party of its obligations under this Section 13.2 unless and to the extent reasonably practicable and subject that the Indemnifying Party shall have been actually prejudiced by the failure of such Indemnified Party to Applicable Law, consult with the Seller so notify such party. Such notice shall describe in relation reasonable detail such claim to the conduct extent known by the Indemnified Party. In case any such action, suit, claim or proceeding is brought against an Indemnified Party, the Indemnified Party shall be entitled to hire counsel, at the cost and expense of the Third Indemnifying Party, and to conduct the defense thereof; provided, however, that the Indemnifying Party Claim shall only be liable for the legal fees and expenses of one (1) law firm for all Indemnified Parties, taken together with regard to any single action or group of related actions, upon agreement by the Indemnified Parties and the Indemnifying Parties. If the Indemnifying Party assumes the defense of any claim, all Indemnified Parties shall take reasonable account of the views of the Seller before taking any action in relation thereafter deliver to the Third Indemnifying Party Claim;
11.4.2 no admissions in relation copies of all notices and documents (including court papers) received by the Indemnified Parties relating to the Third claim, and any Indemnified Party Claim shall be made by cooperate in the defense or prosecution of such claim. Such cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such claim, making employees available on behalf a mutually convenient basis to provide additional information and explanation of the Purchaser or any member of the Purchaser’s Group and the Third material provided hereunder. The Indemnifying Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request liable for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct settlement of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); andaction,
(b) suit, claim or proceeding effected without its written consent; provided, however, that the Indemnifying Party shall not make any admission of liabilityunreasonably withhold, agreement delay or condition its consent. The Indemnifying Party further agrees that it will not, without the Indemnified Party's prior written consent, settle or compromise any claim or consent to entry of any judgment in relation to that Third respect thereof in any pending or threatened action, suit, claim or proceeding in respect of which indemnification has been sought hereunder unless such settlement or compromise (1) includes an unconditional release of such Indemnified Party Claim without from all liability arising out of such action, suit, claim or proceeding, (2) provides solely for the prior written approval payment of money damages and not any injunctive or equitable relief or criminal penalties and (3) does not create any financial or other obligation on the Seller (such approval part of an Indemnified Party which would not to be unreasonably withheld, conditioned or delayed);
(ii) indemnified in full by the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;Indemnifying Party.
(c) keep The indemnity provided for in this Section 13.2 shall not be the Purchaser informed sole and exclusive remedy of all relevant matters the Indemnified Parties after the Closing for any inaccuracy of any of the representations and warranties contained in this Agreement or any other breach of any covenant or agreement contained in this Agreement. No party to this Agreement (or any of its Affiliates) shall, in any event, be liable or otherwise responsible to any other party (or any of its Affiliates) for any punitive damages of such other party (or any of its Affiliates) arising out of or relating to this Agreement or the Third Party Claim and shall promptly forward performance or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claimbreach hereof.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If Subject to Clauses 11.6 and 11.7, if the matter or circumstance that may give rise to a Claim other than a Tax Claim claim against the Seller under this Agreement is a result of or in connection with a claim by a third party (including a claim by a Tax Authority which could result in the Seller being liable under Clause 15.7.4, Schedule 4 (Tax) or for breach of a Seller’s Warranty in paragraph 18 of Schedule 5 (Warranties given by the Seller under Clause 9.1)) (a “Third Party Claim”) then:
11.4.1 11.5.1 until such time (if any) as the Seller assumes control of a Third Party Claim in accordance with Clause 11.5.4, the Purchaser shall, to shall assume conduct of all Third Party Claims (including taking all such actions as set out in Clause 11.5.3) and the extent reasonably practicable and subject to Applicable Law, Purchaser shall consult with the Seller so far as reasonably practicable in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 11.5.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group (including, after Closing, the Target Group Companies) and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, 11.5.3 the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group (including, after Closing, the Target Group Companies) shall, take such reasonable action (or procure the taking of such action) as the Seller may reasonably request consider necessary or appropriate to pursue, enforce, avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 Claim provided that the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs shall pay and expenses:
(i) make available to indemnify the Purchaser and each member of the relevant Purchaser’s Group Company such persons and all such information as the Purchaser may reasonably (on a Net After-Tax Basis) upon request for assessingany costs or expenses reasonably incurred (including, contestingwithout limitation, disputingthe amount of any judicial deposits, defendingand/or the cost of any bank guarantees, compromising or appealing the Third Party Claim; and
insurance bonds required to litigate certain matters, or court fees, opposing party fees (iisucumbência) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on and/or any Business Day following reasonable notice being given to the Sellerother legal fees) in relation thereto;
11.4.5 subject to 11.4.3, 11.5.4 the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and take such reasonable action as it shall deem necessary or appropriate to have the conduct of any related proceedingspursue, negotiations enforce, avoid, dispute, deny, defend, resist, appeal, compromise or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct contest the Third Party Claim with a view to minimising any material harm to in the goodwill name of and reputation on behalf of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise(including, after Closing, the maximum liability Target Group Companies) concerned and to have the conduct of and assume control over any related proceedings, negotiations or appeals provided that the Seller shall (without prejudice shall, in relation to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the such Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim (other than a Tax Claim Claim) is a result of or in connection with a claim by a third party (a “Third Party Claim”) ), then:
11.4.1 12.5.1 subject to Clause 12.5.2:
(i) the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, consult with shall keep the Seller informed of any material steps and development in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 (ii) no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any other member of the Purchaser’s Group (including, after Closing, the Group) and the Third Party Claim shall not be compromised, disposed of or settled without the prior written consent of the Seller, such consent not to be unreasonably withheld withheld, conditioned or delayed;
11.4.3 (iii) subject to the Seller indemnifying reimbursing the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) expenses that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the any other members of the Purchaser’s Group (including, after Closing, the Group) shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 (iv) to the Seller shallextent permitted by Applicable Law and in relation to any Claim other than under the indemnities set out in Clause 7 subject to prior written consent from the Purchaser, subject in each case such consent not to being paid all reasonable out-of-pocket costs and expensesbe unreasonably withheld, conditioned or delayed:
(ia) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled may, at its own expense and in its absolute discretion, by notice in writing take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Purchaser, to assume conduct of any Third Party Claim (including making counterclaims or other claims against third parties) in the name of and on behalf of the Purchaser or other member of the Purchaser’s Group concerned and to have the conduct of and assume control over any related proceedings, negotiations or appeals, provided that the Seller shall keep the Purchaser informed of any material steps and development in the conduct of such Third Party Claims; and
(b) if any admission, compromise, disposal or settlement proposed by the Seller would have a material adverse effect on the business of the Group then the restrictions on admissions or compromise, disposal or settlement in relation to the Third Party Claim set out in Clause 12.5.1(ii) shall apply by replacing the Purchaser with the Seller where relevant;
11.4.6 (v) if the Seller sends a notice to has taken conduct of the Purchaser Third Party Claim pursuant to Clause 11.4.5 and until such time as any final compromise12.5.1(iv), agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any other member of the Purchaser’s Group shall:
(a) shall give, subject to their being paid all reasonable costs and expenses, all such information and assistance which it is reasonable to give, including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege)records, as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise 12.5.2 in relation to that Third Party Claim without the prior written approval respect of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as indemnities set out in Clause 11.4.6(ii)(d)7, in the event of any inconsistency between the provisions of Schedule 6 and the terms of Clause 12.5.1, the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between Schedule 6 shall prevail to the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect extent of rights or claims contemplated by this Clause 11.4) without the consent of any Group Companysuch inconsistency.
Appears in 1 contract
Conduct of Third Party Claims. If the matter In respect of any fact, matter, event or circumstance that may give rise which any Buyer Group member becomes aware of, which is reasonably likely to result in a claim against any of them which is not a Moranbah North Claim (a “Third-Party Claim”) and which, in turn, is reasonably likely to result in a Claim (other than a Tax Claim is a result Claim, to which the provisions of or in connection with a claim by a third party (a “Third Party Claim”) thenSchedule 8 will instead apply), the Buyer shall:
11.4.1 (a) as soon as reasonably practicable give written notice of the Purchaser shall, Third-Party Claim to the Seller specifying in reasonable detail the material aspects of the Third-Party Claim (but any failure to do so will not prejudice the Buyer’s Claim except to the extent the amount of the Claim is increased by the delay);
(b) keep the Seller reasonably practicable informed of the progress of the Third-Party Claim;
(c) provide the Seller upon request (and at the Seller’s cost and expense) with copies of all material correspondence or other documents relating to the Third-Party Claim requested by the Seller, subject always to Applicable Law, legal professional privilege and any confidentiality obligations that are binding on any Buyer Group member;
(d) consult with the Seller regarding the conduct of the Third-Party Claim;
(e) not cease to defend the Third-Party Claim or make any admission of liability or any agreement, compromise or payment in relation to the conduct of the Third Third-Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the Seller’s written consent of the Sellerconsent, such consent which will not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expensesf) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, resist, dispute, deny, defend, resist, appeal, compromise compromise, remedy or contest defend the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable outThird-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(iig) shall give subject to any consent (if any) required under a Joint Venture Agreement (which the Purchaser Buyer must (and the relevant must procure any Group Company must) use reasonable access endeavours to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to obtain), allow the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and election (in its absolute discretion, by notice in writing to the Purchaserwriting), to assume conduct of any Third Party Claim and to have take over the conduct of any related proceedingsthe Third-Party Claim, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed ofwhich case:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group Buyer shall:
(aA) give, subject delegate the conduct of any proceedings in respect of the Third-Party Claim to being paid all reasonable costs and expenses, all the Seller;
(B) retain such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as nominated by the Seller may nominate to act on behalf of the Purchaser or other member relevant member(s) of the Purchaser’s Buyer Group concerned but in relation to the Third-Party Claim in accordance with the Seller’s instructionsinstructions (provided the Buyer is entitled to engage its own separate legal advisers, provided at its own cost and expense);
(C) procure that its Representatives provide such information and assistance as the appointment Seller or the appointed legal advisers may require in connection with the conduct of the Third-Party Claim (subject to the Seller paying reasonable cost and expenses of such adviser or advisers shall have been approved Representatives in writing by the Purchaser (providing such approval not to be unreasonably withheld, conditioned or delayedinformation and assistance); and
(bD) not make any admission of liability, agreement procure that the relevant Group Company will promptly take such actions or compromise in relation omit to that Third Party Claim without the prior written approval of take such actions as directed by the Seller (such approval not to be unreasonably withheld, conditioned or delayed);in accordance with its rights under this paragraph 14; and
(ii) the Seller shall:
(aA) consult with keep the Purchaser and take reasonable account Buyer reasonably informed of the views progress of the Purchaser before taking any action in relation to the Third Third-Party Claim;
(bB) without prejudice provide the Buyer upon request with copies of all material correspondence or other documents relating to its ability to defend the Third Party Claim, conduct the Third Third-Party Claim with a view requested by the Buyer, subject always to minimising legal professional privilege and any material harm to confidentiality obligations that are binding on the goodwill and reputation Seller or any of the Wider Group or the Purchaser’s Groupits Affiliates;
(cC) keep consult with the Purchaser informed Buyer regarding the conduct of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including nonThird-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(dD) not cease to defend the Third-Party Claim or make any admission of liability or enter into any agreement or compromise in relation to such Third-Party Claim without consultation with the Buyer; and
(E) have a consent right, not to be unreasonably withheld or delayed, in respect of any admission of liability, compromise or settlement or compromise payment in respect of any Third-Party Claim by any Buyer Group member;
(F) act reasonably in all the circumstances in respect of the Third Party Claim without the written consent conduct of the PurchaserThird-Party Claim, such consent not including having regard to be unreasonably withheld, conditioned or delayed. If the Purchaser or member likelihood of success the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromiseproceedings; and
(eG) indemnify, save as set out in Clause 11.4.6(ii)(dprovided that the Buyer has complied with its obligations under paragraph 14(g)(i), indemnify the Purchaser or other member of the Purchaser’s Group concerned Buyer on demand (on a dollar for dollar basis) against all reasonable costs Liabilities reasonably incurred by the Buyer and expenses (including legal and professional costs and expenses) that may be incurred as a result of its Affiliates in connection with the Seller assuming conduct of the Third Third-Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) Claim by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If 12.1 Subject to paragraph 12.1(b), if the matter or circumstance that may give rise to a Claim other than a Tax Claim is a result of or in connection with a claim by a third party other than a Tax Authority (a “Third Party Claim”) then:
11.4.1 (a) the Purchaser shallshall control the Third Party Claim, to the extent reasonably practicable and subject to Applicable Law, but shall consult with the Seller, and the Seller shall cooperate with the Purchaser, in relation to the conduct of the Third Party Claim Claim, and the Purchaser shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 (b) only in respect of Fundamental Warranty Claims (and only if such Claims do not (i) involve any criminal proceeding, action, indictment, allegation or investigation, or in which relief other than monetary damages is sought, (ii) involve a purported class action, or (iii) involve Losses in excess of the Seller’s maximum indemnification obligations under this Agreement):
(i) no admissions in relation to the such Third Party Claim shall be made by or on behalf of the Purchaser or any other member of the Purchaser’s Group and the such Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, Seller (such consent not to be unreasonably withheld or delayed);
11.4.3 (ii) subject to the Seller indemnifying the Purchaser or other member of the Purchaser’s Group concerned against all reasonable reasonably and properly incurred costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the any other members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(iiiii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any take such action as it shall deem reasonably necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim (including making counterclaims or other claims against third parties) with counsel of its choice satisfactory to the Purchaser (acting reasonably) in the name of and on behalf of the Purchaser or other member of the Purchaser’s Group concerned and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 (c) if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:paragraph 12.1(b):
(i) the Purchaser shall, and the Purchaser shall procure that any other member of the Purchaser’s Group shall:
(a) a. use reasonable endeavours to give, subject to their being paid all reasonable out of pocket costs and expenses, all such information and assistance including reasonable access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege)records, as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions;
b. be entitled to participate in the defence of the Third Party Claim, and to employ its own professional or legal advisers, provided that the appointment Seller shall control the conduct of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without and the prior written approval Purchaser will be entitled to participate in any such defence with separate counsel of its own choosing at the expense of the Seller if: (1) so requested by the Seller or (2) in the reasonable judgment of the Purchaser, a material conflict exists between the Purchaser and the Seller that would make such approval not to be unreasonably withheld, conditioned or delayed);separate representation advisable; and
(ii) the Seller shall:
(a) a. consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) b. keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) c. not make any admission of liability, settlement or compromise of the Third Party Claim without the prior written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned withheld or delayed. If Subject to paragraph 12.1(d), if the Purchaser or member of the Purchaser’s Group fails to reasonably consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10paragraph 12) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and reasonable costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and. For purposes of this paragraph 12.1(c)(ii)(c), the parties acknowledge and agree that it would not be unreasonable for the Purchaser to withhold consent with respect to a settlement or compromise unless such settlement or compromise, among other things, (1) consists solely of money (or equivalent) damages, (2) provides for a complete and unconditional release of the claims that are the subject of such Claim in favour of the Purchaser or relevant member of the Purchaser’s Group and (3) does not lead to additional liability or the creation of any additional financial or other obligation or restriction on the part of the Purchaser;
(e) d. indemnify, save as set out in Clause 11.4.6(ii)(dparagraph 12.1(c)(ii)(c), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(id) by Notwithstanding paragraphs 12.1(b) to 12.1(c), neither the Purchaser nor any Group Company against the Seller; and
(ii) by any other member of the SellerPurchaser’s Group against shall be required to take any action or refrain from taking any action, if the Purchaser Purchaser, or a other member of the Purchaser’s Group Companyconcerned, under the Contracts (Rights of Third Parties) Xxx 0000reasonably considers such action or omission to be unduly onerous or materially prejudicial to it or to its business.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller 1 Definitions and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.interpretation
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (Callaway Golf Co)
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim other than a Tax Claim is a result of or in connection with a claim by a third party (a “Third Party Claim”A) then:
11.4.1 Upon the Purchaser shallbecoming aware of any assessment, to the extent reasonably practicable and subject to Applicable Lawclaim, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or demand against any member of the Purchaser’s Group and (for the Third Party Claim shall not be compromisedpurposes of this paragraph 3, disposed a “third party claim”) which in its reasonable opinion is likely to give rise to any claim by the Purchaser it in respect of or settled without the written consent any of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred therebyWarranties, the Purchaser shall, or :
(i) as soon as reasonably practicable notify the Vendor thereof in writing;
(ii) subject to the Vendor indemnifying the Purchaser shall procure that the members against any liability, cost, damage or expense which may be incurred thereby (but without implying any admission of the Purchaser’s Group shallliability thereby), take such action and give such information and access to personnel, premises, chattels, documents and records to the Vendor and their professional advisers as the Seller Vendor may reasonably request and the Vendor shall be entitled to require the Company to take such action and give such information and assistance in order to avoid, dispute, deny, defend, resist, appealmitigate, compromise settle, compromise, defend or contest the Third Party Claimappeal any claim in respect thereof or adjudication with respect thereto;
11.4.4 the Seller shall, (iii) subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Vendor indemnifying the Purchaser against any liability, cost, damage or expense which may be incurred thereby (but without implying any admission of liability thereby), at the request of the Vendor, allow the Vendor to take the sole conduct of such actions as the Vendor 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 relevant Group Company such persons and Purchaser shall give or cause to be given to the Vendor all such information assistance as the Purchaser Vendor may reasonably request for assessing, contestingrequire in avoiding, disputing, defendingresisting, compromising settling, compromising, defending or appealing the Third Party Claim; and
(ii) any such claim and shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for instruct such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations legal or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal other professional privilege but including, in each case, information or documents that are subject to common interest privilege), advisors as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller Vendor may nominate to act on behalf of the Purchaser or other any relevant company, as appropriate, but to act in accordance with the Vendor’s instructions provided that the Purchaser shall not be required to commence any legal proceedings where either:
(a) the Purchaser has validly assigned all of its rights in relation to the relevant claim to the Vendor in a manner which entitles the Vendor to the same benefits in respect of such rights as the Purchaser had; or
(b) where the above sub-paragraph (a) does not apply, the Vendor has not notified the relevant party against whom such proceedings are brought that such proceedings are being brought at the instruction of the Vendor;
(iv) be entitled to participate in the defence of any claim and to employ separate counsel to represent it at its own expense, provided that the Vendor shall control the defence of any claim;
(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 the Vendor; and
(vi) take all reasonable action to mitigate any loss suffered by it or any member of the Purchaser’s Group concerned but in accordance with respect of which a claim could be made under the SellerWarranties.
(B) Notwithstanding paragraph 3(A) above, (i) the Vendor shall be entitled on behalf of the Purchaser to settle any third party claim provided that, and (ii) neither the Purchaser or the Company shall be obliged to admit liability or settle any third party claim unless, the Vendor has first admitted liability to the Purchaser for breach of the applicable Warranty.
(C) Without prejudice to any remedy the Vendor may have (including any claim for damages for breach of paragraph 3(A) above), or the extent of any damages to which the Vendor might be entitled, in relation to such failure and without prejudice to the Purchaser’s instructionsduty to mitigate or any reduction in the quantum of damages the Purchaser may be able to recover if it fails to mitigate, provided that the appointment of such adviser or advisers shall have been approved in writing failure by the Purchaser (such approval to comply with paragraph 3(A) above shall not to be unreasonably withheld, conditioned or delayed); and
(b) not make by itself disqualify it from maintaining a claim under any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claimapplicable Warranty.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. 17.1 If the matter Buyer or circumstance the relevant Group Member becomes aware that may matters have arisen which will or are reasonably likely to give rise to a Third Party Claim other than and which, in turn, may result in a Tax Claim is a result against the Seller, the Buyer will (or will procure that the relevant Group Member will):
17.1.1 without undue delay, notify the Seller in writing of the potential Third Party Claim and of the matters which will or in connection with a claim by a third party (a “are likely to give rise to such Third Party Claim”) then:;
11.4.1 the Purchaser shall17.1.2 not make any admission of liability, to the extent reasonably practicable and subject to Applicable Law, consult agreement or compromise with the Seller any person or Authority in relation to the conduct Third Party Claim without the prior written consent of the Seller, which should not be unreasonably refused, delayed or withheld;
17.1.3 at all times disclose in writing to the Seller all information and documents relating to the Third Party Claim and shall take reasonable account of or the views of the Seller before taking any action in relation matters which will or are likely to give rise to the Third Party Claim;
11.4.2 no admissions in relation to 17.1.4 if requested by the Seller for the purposes of investigating the Third Party Claim shall be made by or on behalf the matters which will or are likely to give rise to a potential Third Party Claim, give the Seller and its professional advisers reasonable access to any relevant accounts, documents and records within the power, possession or control of the Purchaser or any member Buyer and/or the relevant Group Member, necessary in the context of the Purchaser’s Group and the relevant Third Party Claim shall not be compromisedClaim, disposed of or settled without in order to, at the written consent expense of the Seller, such consent not to be unreasonably withheld or delayedexamine, photograph and take copies of the accounts, documents and records;
11.4.3 subject 17.1.5 in the event of a Third Party Claim involving an Authority (i.e. to the Seller indemnifying the Purchaser or member exclusion of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, any Third Party Claim with suppliers and/or clients):
17.1.5.1 take such action as the Seller may reasonably request to avoid, disputeresist, denycontest, defend, resist, appeal, compromise or contest remedy the Third Party Claim;
11.4.4 Claim or the Seller shall, subject in each case matters which will or are likely to being paid all reasonable out-of-pocket costs and expenses:
(i) make available give rise to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have in each case on the conduct of any related proceedings, negotiations or appeals;
11.4.6 if basis that the Seller sends a notice to will indemnify the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid Buyer for all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be Costs incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) a request by any Group Company against the Seller; and
(ii) 17.1.5.2 in connection with any actions or proceedings relating to the matter or Third Party Claim, and subject to the Buyer being indemnified for all reasonable Costs incurred, use advisers nominated by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and and, if the Purchaser (and Seller requests, allow the Purchaser may also release Seller the exclusive conduct of such actions or compromise in whole or in part proceedings. In the event that the Seller requests application of paragraphs 17.1.5.1 and/or 17.1.5.2 above, it shall be considered as having irrevocably accepted to indemnify the Buyer for the relevant Claim should any liability loss arise in respect of rights or claims contemplated by the same (subject always to the limitations applying to the relevant Claim in this Clause 11.4) without the consent of any Group CompanyAgreement).
Appears in 1 contract
Conduct of Third Party Claims. If (a) If, after Closing, a Claim Notice relates to any action, lawsuit, proceeding, investigation or other claim brought against the matter Buyer and/or a Group Company by a Third-Party (a Third-Party Claim), Buyer shall give written notice within ten (10) Business Days after the Buyer or the relevant Group Company acquires knowledge of the event, fact or circumstance that may give giving rise to a such Claim other than a Tax Claim is a result of or in connection with a claim by a third party (a “Third to the Sellers Representative describing the Third-Party Claim”) then:
11.4.1 , the Purchaser shallamount thereof (if known and quantifiable), and the basis thereof; provided that any failure to so notify or any delay in notifying the Sellers Representative shall not relieve the Sellers of their obligations hereunder, except to the extent reasonably practicable that the Sellers are actually prejudiced by such failure or delay.
(b) After such notice, if the Third-Party Claim may result in a claim against the Sellers and subject to Applicable Law, consult the relevant Sellers have unequivocally accepted the principle of their liability hereunder (it being provided that the amount of the Loss which should be indemnified by the Sellers shall be determined in accordance with the Seller terms and limitations set forth in relation to this Section 11), the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or Sellers Representative, on behalf of the Purchaser or any member Sellers, shall be entitled, at the risk and expense of the Purchaser’s Group Sellers, to participate in the defense of such claim and the Third Party Claim shall not be compromisedconsult with Buyer in any defense of such claim, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to it being paid all reasonable out-of-pocket costs and expensesunderstood that:
(i) make available Buyer shall have the sole right to control such defense and appoint a lead counsel reasonably acceptable to the Purchaser Sellers Representative, and shall conduct such defence in good faith;
(ii) if the Buyer and/or a Group Company receive any communication or notice in relation to any Third-Party Claim, the Buyer shall, and shall procure that the relevant Group Company shall, within five (5) Business Days from such persons receipt, inform the Sellers Representative and all provide the Sellers Representative with a copy of such information as communication or notice; provided that any failure to so notify or any delay in notifying the Purchaser may reasonably request for assessingSellers Representative shall not relieve the Sellers of their obligations hereunder, contestingexcept to the extent that the Sellers are actually prejudiced by such failure or delay;
(iii) the Buyer shall give, disputingand shall procure that the relevant Group Company gives, defending, compromising or appealing to the Third Sellers Representative and its advisors the opportunity to comment and the right to object with respect to the defense/settlement of any such Third-Party Claim, it being specified that the Buyer shall, and shall procure that the relevant Group Company shall, take into account all reasonable comments of the Sellers Representative and/or its advisors as to the direction and strategy and contents of the defense/settlement; and
(iiiv) more specifically, in the case of a Third-Party Claim relating to a Tax audit, claim or reassessment, the Buyer shall, and shall give the Purchaser and procure that the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3shall, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) communicate to the Purchaser shallSellers Representative a copy of any communication or notice sent by the Tax authorities in relation to such Tax audit, claim or reassessment, within ten (10) Business Days from their receipt, (ii) request the Sellers Representative to provide comments in writing on the draft responses to the Tax authorities prepared by the Buyer, and/or the relevant Group Company and incorporate all reasonable comments of the Sellers Representative into such responses, and (iii) invite the Purchaser shall procure that any member of Sellers Representative in due time to all meetings with the Purchaser’s Group shall:Tax auditors or Authorities which may be set up in relation to such Tax audit, claim or reassessment. |EU-DOCS\31822603.17||
(ac) giveIf the Sellers Representative, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser Sellers, has decided not to participate in the defence of such claim Third-Party Claim, the Buyer shall (i) conduct such defence in good faithand in a manner a reasonable and prudent defendant would conduct such Third-Party Claim, (ii) promptly provide the Sellers Representative with a copy of any communication or notice received by the Buyer and/or a Group Company in relation to such Third-Party Claim and (iii) keep the Sellers Representative regularly informed of the status thereof.
(d) In all cases, the Buyer shall, and shall procure that the relevant Group Company shall, reasonably cooperate with the Sellers Representative in the negotiation, conduct, defense and/or settlement of any Third-Party Claim. Conversely, the Seller Representative shall have regard to the corporate interest of the relevant company in the context of the Third-Party Claim.
(e) The Sellers shall not be liable for any compromise or settlement or waiver of any appeal or other member remedy of any such Third-Party Claim effected without the prior written consent of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers Sellers Representative (which consent shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) , except where more than 50% of the Loss that may be incurred by the Buyer or any Group Company absent such compromise or settlement or waiver would not make any admission be payable by the Sellers pursuant to the provisions of liabilitythis Agreement. Notwithstanding the foregoing, agreement in the event that the Sellers refuse to consent to a compromise or compromise in relation settlement proposed by Buyer, and it is subsequently determined pursuant to the provisions of this Agreement that Third the facts underlying such Third-Party Claim without the prior written approval constituted a breach of the Seller representations made in this Agreement, Buyer may recover for its Losses in respect of such Claim (subject to the limitations set forth in this Agreement) notwithstanding Seller’s refusal to consent to such approval not to be proposed compromise or settlement, or if it is determined that Sellers’ refusal was unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim other than a Tax Transferor Claim is a result of or in connection with a claim or fine by or from a third party (including any regulator, government or governmental authority or Taxation Authority) (a “Third Party Claim”) then:
11.4.1 the Purchaser shall), then to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct that a Relevant Purchaser or any member of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action Relevant Purchasers’ Group is involved directly in relation to the such Third Party Claim;:
11.4.2 12.4.1 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Relevant Purchaser or any other member of the Purchaser’s Relevant Purchasers’ Group and the Third Party Claim shall not be compromised, disposed of, settled or otherwise dealt with by the Relevant Purchaser or a member of or settled without the Relevant Purchasers’ Group except with the written consent of the Seller, Transferor concerned (such consent not to be unreasonably withheld or delayed);
11.4.3 subject 12.4.2 the relevant Transferor shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Seller indemnifying the Purchaser or member of the Relevant Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, to take such action as the Seller may reasonably request it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 Claim (including making counterclaims or other claims against third parties and including instructing such professional and legal or tax advisers as such Transferor may nominate to act on behalf of the Seller shall, subject Relevant Purchaser or other member of the Relevant Purchasers’ Group) in each case to being paid all reasonable out-of-pocket costs the name of and expenses:
(i) make available to on behalf of the Relevant Purchaser and or other member of the relevant Relevant Purchasers’ Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim concerned and to have the conduct of any related proceedings, negotiations or appeals;; and
11.4.6 if the Seller sends a notice 12.4.3 to the extent that the relevant Transferor does not exercise its rights under Clause 12.4.2, subject to being indemnified (on an after-Tax basis) against Losses which may thereby be incurred and to the extent permitted by applicable Law and Regulations, the Relevant Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Relevant Purchasers’ Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all shall take such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), action as the Seller such Transferor may reasonably requestrequest to avoid, including instructing dispute, resist, appeal, compromise, honour, handle, defend or mitigate such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without provided that nothing in this Clause 12.4 shall oblige the prior written approval of Relevant Purchaser to take any action if the Seller (Relevant Purchaser reasonably considers such approval not action to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm materially prejudicial to the goodwill and reputation or business of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Transfer Agreement (Royal Bank of Scotland Group PLC)
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim claim against a Seller under this Agreement or any relevant Local Transfer Document for breach of any Seller’s Warranty (other than a Tax Claim Warranty) is a result of or in connection with a claim by a third party (a “Third Party Claim”) then:
11.4.1 10.4.1 the Purchaser shall, to the extent shall as soon as reasonably practicable give written notice thereof to that Seller and subject to Applicable Law, thereafter shall provide that Seller with periodic updates upon reasonable request and shall consult with the that Seller so far as reasonably practicable in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the that Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and 10.4.2 the Third Party Claim shall not be admitted, compromised, disposed of or settled without the written consent of the Seller, that Seller (such consent not to be unreasonably withheld or delayed;); and
11.4.3 10.4.3 subject to the that Seller indemnifying the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the any other members of the Purchaser’s Group shall, take such action as the that Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 , provided that this Clause 11.4.3 shall not apply where the Seller shall, subject claim by the third party relates to matters or circumstances referred to in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising paragraph 4 or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct paragraph 9 of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, Schedule 13 and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and then have the right to examine and copy or photograph any assets, accounts, documents and records conduct the claim at its discretion (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilegeClauses 11.4.1 and 11.4.2), as provided that failure to give notice in accordance with Clause 11.4.1 shall not affect the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf rights of the Purchaser or other member to make a relevant claim under this Agreement for breach of the Purchaser’s Group concerned but in accordance with the any Seller’s instructionsWarranty, provided except that the appointment failure shall be taken into account in determining the liability of that Seller for such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation claim to the Third Party Claim;
(b) without prejudice to its ability to defend extent that Seller establishes that the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement it is increased, or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnifyis not reduced, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claimthat failure.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If 6.1 In the matter event that any negotiations with third parties or circumstance that may give rise to a Claim other than a Tax Claim is a result of or litigation in connection with a claim any claim, action or demand by a third party which gives rise to an obligation on the Buyer to give notice under paragraph 2 the provisions of paragraphs 6.2 and 6.4 shall apply.
6.2 The Buyer shall at the Sellers’ written request and cost (a “Third Party Claim”and each of the Sellers hereby agrees to indemnify the Buyer and any member of its Group against all costs incurred by the Buyer or any member of its Group resulting from the Buyer complying with its obligations under this paragraph, including any directly attributable increase in the premium payable on the renewal of any insurance policy) then:
11.4.1 take such action and initiate such proceedings, and give such information and assistance, as the Purchaser shallSellers may from time to time reasonably request to dispute, to resist, appeal, compromise, defend, remedy or mitigate the extent reasonably practicable and subject to Applicable Law, consult with matter in question or enforce against any person (other than the Seller Sellers) the rights of the Buyer or the Sellers in relation to the conduct matter in question (save that a request from the Sellers shall be deemed to be unreasonable where there is a demonstrable risk that the action requested would materially and adversely affect the Company).
6.3 Whether or not the Sellers make any request under paragraph 6.1 the Buyer shall:
6.3.1 consult with the Sellers as soon as reasonably practicable with regard to any actual or proposed developments relating to the matter in question and provide the Sellers with copies of the Third Party Claim all correspondence and shall take reasonable account of the views of the Seller before taking any action documents in relation to that matter which the Third Party Claim;Sellers shall reasonably require; and
11.4.2 no admissions 6.3.2 not admit liability in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed respect of or settled settle or compromise the matter in question without the prior written consent of the Seller, Sellers such consent not to be unreasonably withheld or delayed;, save where obtaining such consent would materially and adversely affect the Company.
11.4.3 subject to 6.4 If there is any dispute between the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser Sellers and the relevant Group Company such persons and all such information Buyer as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made whether liability in respect of any third party claim should be admitted or whether any claim related to a right of recovery from a third party (under paragraph 5) or a third party claim that Third Party Claim claim should be settled or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shallcompromised, liability shall not be admitted, and the Purchaser that claim shall procure that any member of the Purchaser’s Group shall:
(a) givenot be settled or comprised, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but than in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may paragraph. Any such dispute shall be varied or terminated by agreement referred to leading counsel agreed between the Seller Sellers and the Purchaser (Buyer or, in default of agreement on or before the date falling five Business Days after the date on which an individual is first proposed for the purpose by either the Sellers or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Sellers or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Sellers is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers, unless that course of action has a demonstrable risk of having a material and adverse effect on the Company and the Purchaser other course of action proposed does not in which case the individual to whom the dispute has been referred shall give his opinion as to which course of action has the least risk of a material and adverse effect on the Company. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel’s fees and expenses shall be borne by the Sellers and the Buyer as counsel may also release determine in his sole discretion or, if no such determination is made by the Sellers and the Buyer in equal shares. The parties shall then implement counsel’s decision as soon as is reasonably practicable.
6.5 References in this paragraph 6 to any claim, action or compromise in whole demand against the Buyer or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent Company include the assertion of any Group Companyright to the same, including a right of termination.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (TRM Corp)
Conduct of Third Party Claims. 8.1 If the matter or circumstance that may give rise to a Warranty Claim other than in respect of a Tax Claim is Warranty arises as a result of of, or in connection with with, a claim by liability or alleged liability to a third party (a “Third Party Claim”) then:
11.4.1 ), then the Purchaser shall, Sellers may elect to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to assume the conduct of any appeal, dispute, compromise or defence of the Third Party Claim and shall take reasonable account of any incidental negotiations on the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expensesfollowing terms:
(ia) make available to the Sellers shall first indemnify the Purchaser and the relevant Group Company against all liabilities, charges, costs and expenses which they may reasonably incur in connection with the Third Party Claim and in taking any such action as the Sellers may require in accordance with this subparagraph 8.1;
(b) the Purchaser shall procure the relevant Group Company to make available to the Sellers such persons and all such information as the Purchaser Sellers may reasonably request require for assessingaccessing, contesting, disputing, defending, appealing or compromising or appealing the Third Party Claim; and;
(iic) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s relevant Group shall:
(a) giveCompany takes such action to access, subject to being paid all reasonable costs and expensescontest, all such information and assistance including access to premises and personnelappeal, and dispute, defend or compromise the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), Third Party Claim as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing be requested by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) Sellers and does not make any admission of liability, agreement agreement, settlement or compromise in relation to that the Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);Sellers; and
(iid) the Seller shallSellers shall keep the Purchaser informed of the progress of the Third Party Claim and provide the Purchaser with copies of all relevant documents and such other information in its possession as may be reasonably requested by the Purchaser.
8.2 Nothing in this paragraph 8 shall require the provision by any person of any information to the extent such provision would contravene any applicable law or regulation or would breach any obligation of confidentiality owed to any third party. If any information is provided by any person (the Provider) to any other person (the Recipient) pursuant to this paragraph 8:
(a) consult that information shall only be used by the Recipient in connection with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and the provisions of clause 12 shall promptly forward or procure in all other respects apply to be forwarded to the Purchaser copies of all correspondence and other written communications with such other that information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(eb) indemnify, save as set out in Clause 11.4.6(ii)(d), to the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) extent that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforcedinformation is privileged:
(i) no privilege shall be waived by any Group Company against reason of or as a result of its being provided to the SellerRecipient; and
(ii) if a third party requests disclosure by any member of the Seller’s Group against Recipient in relation to that information, if the Purchaser Recipient is a Seller or the Purchaser, the Recipient shall or, if the Recipient is a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and shall procure that the Purchaser may also release or compromise Recipient shall promptly notify the Provider and, to the extent it can do so, itself assert privilege in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Companyopposition to that disclosure request.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Share Capital (Liberty Global, Inc.)
Conduct of Third Party Claims. If the matter or 5.1 Subject to paragraph 5.2, if an indemnified party actually becomes aware of any circumstance that which may reasonably be expected to give rise to a claim from a Third Party which in turn may give rise to a Claim (other than a Claim set forth on Part E (Purchaser Conduct) on Schedule 42 (Certain Litigation Liabilities) or a Tax Claim is a result of or in connection with a claim by a third party Claim) (a “"Third Party Claim”"), the indemnified party shall as soon as reasonably practicable (but in any event within twenty (20) then:
11.4.1 Business Days) of becoming so aware and determining in its reasonable discretion that it may give rise to such a Claim give written notice thereof (including reasonable particulars of each such Third Party Claim or circumstance) to the Purchaser shallindemnifying party; provided that the failure by any indemnified party to so notify the indemnifying party shall not relieve the indemnifying party from any indemnification obligation or other Liability that it may have to such indemnified party, except to the extent that the indemnifying party shall have been actually and materially prejudiced as a direct result of such failure.
5.1.1 To the extent that an indemnifying party is defending or prosecuting the relevant Third Party Claim pursuant to and in accordance with paragraphs 5.1.3 and 5.1.4 below, the indemnified party shall not make any admission of Liability, or any agreement or compromise with any Person in relation thereto without the prior written consent of the indemnifying party (not to be unreasonably withheld, conditioned, or delayed).
5.1.2 In the event the indemnifying party chooses to defend or prosecute the relevant Third Party Claim pursuant to paragraph 5.1.3 below, the Parties shall reasonably practicable cooperate and shall cause their respective Affiliates to reasonably cooperate in the defense or prosecution thereof. Such cooperation shall include the provision to the indemnifying party and its Representatives access (during normal business hours and without causing undue interference to the indemnifying party's operations) to the premises, directors and employees who have knowledge of the relevant information material to the Third Party Claims, as the case may be, and access to any relevant Records within each Party's control (to the extent the same are permitted by Law, not otherwise subject to Applicable Lawany attorney-client privilege, consult with and not subject to confidentiality obligations) to allow the Seller indemnifying party and its Representatives to examine the same at the indemnifying party's own expense, in relation each case subject to the conduct indemnifying party and its Representatives agreeing to (i) keep all such information confidential and to use it only for the purpose of assessing the Third Party Claim and (ii) pay all reasonable Third Party costs and expenses incurred by the indemnified party in connection therewith.
5.1.3 Upon written notice delivered to the indemnified party within ten (10) days following the indemnifying party's receipt of the indemnified party's notice of a Third Party Claim, the indemnifying party may choose (but shall not be obligated) to assume the defense or prosecution of the Third Party Claim and shall take reasonable account such action on behalf of the views of indemnified party as the Seller before taking indemnifying party deems reasonably necessary or desirable to dispute, defend, appeal, contest or deny any action in relation claim or Liability with respect to the Third Party Claim;
11.4.2 no admissions , provided that, without prejudice to the limitations set out in this Agreement, (i) the indemnifying party has irrevocably acknowledged in writing its unconditional obligation to indemnify the indemnified party for any Damages and reasonable costs with respect to such Third Party Claim, (ii) the indemnified party shall have the right to participate in the investigation, defense or prosecution thereof and to employ counsel, at its own expense, separate from the counsel employed by indemnifying party, (iii) the indemnifying party shall be liable for the reasonable and documented fees and expenses incurred by the indemnified party (including for engagement of its Representatives, including counsel) for any period during which the indemnifying party has not assumed the defense or prosecution thereof (but, subject to paragraph 5.1.4 below, not after the indemnifying party has assumed the defense or prosecution thereof) and (iv) the indemnifying party shall keep the indemnified party informed on a regular and current basis of the progress of such defense and prosecution and provide the indemnified party with copies of all relevant documents and such other relevant information as the indemnified party may reasonably request in relation to such defense or prosecution.
5.1.4 Notwithstanding the Third Party Claim shall be made by or on behalf of foregoing, the Purchaser or any member of the Purchaser’s Group and the Third Party Claim indemnifying party shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct the defense or prosecution of any Third Party Claim and shall cease to have the right to control the investigation, defense or prosecution of such Third Party Claim after its assumption of the same (and shall, without prejudice to the limitations set out in this Agreement, be liable for the Damages and reasonable costs incurred by the indemnified party in defending or prosecuting such Third Party Claim, including fees and expenses of its Representatives (including counsel)) if the Third Party Claim (i) seeks an order, injunction or other non-monetary or equitable relief or relief for other than money damages against an indemnified party, (ii) involves a conflict of interest, which exists or would reasonably be expected to arise in the event the indemnifying party elects to control or defend any Third Party Claim, (iii) relates to or arises in connection with any criminal proceeding, (iv) involves a dispute with a Person that has a former, current or potential material business relationship with the Divestment Business or Retained Business (as applicable), (v) involves environmental matters, (vi) would reasonably be expected to result in Damages and reasonable costs which, together with all prior indemnifications made, agreed to be made or required to be made by the indemnifying party, would exceed the maximum amount for which the indemnifying party is responsible with respect to such Third Party Claim, or (vii) at the time of assumption of such defense or prosecution and thereafter, the indemnifying party fails to demonstrate its ability to conduct the investigation, defense or prosecution actively and diligently. The indemnifying party shall only be authorized to settle, compromise or discharge, or consent to a settlement of, or the entry of any related proceedingsjudgment arising from or with respect to, negotiations or appeals;
11.4.6 any Third Party Claim, without the consent of any indemnified party if the terms of such settlement, compromise, discharge or judgement, as applicable, (i) consists solely of monetary damages for which the indemnified parties are entitled to full indemnification under this Agreement and for which the indemnifying party agrees in writing to pay (and pays) concurrently with the effectiveness of such settlement, judgment, compromise, or discharge, (ii) does not impose on any indemnified party or any of its Affiliates any continuing obligation, (iii) would not reasonably be expected to have a future adverse effect on any indemnified party or any of its Affiliates, (iv) includes, as a condition thereto, a binding, written unconditional irrevocable complete release of the indemnified parties and their respective Affiliates from all Liability with respect to such claim given by each claimant or plaintiff to such claim, (v) does not impose injunctive or other equitable relief against any indemnified party or any of its Affiliates, and (vi) does not contain a finding or admission of any wrongdoing, Liability or violation of applicable Law or violation or acknowledgment of any rights of any Person by any indemnified party or any of its Affiliates. Except as provided in the preceding sentence, no indemnifying party or any of its Affiliates shall settle or consent to the entry of any judgment without the prior approval of the indemnified parties.
5.2 To the extent the Liabilities of any Group Company under any Third Party Claim would be Liabilities set forth on Part F (Seller sends a Conduct) of Schedule 42 (Certain Litigation Liabilities):
5.2.1 without prejudice to the remaining provisions of paragraph 5.1 of this Schedule, the Purchaser shall not be required to give notice to the Purchaser pursuant to Clause 11.4.5 and until Seller of such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim pursuant to paragraph 5.1; and
5.2.2 the Seller shall be deemed to have chosen to assume the defense or that prosecution of such Third Party Claim is otherwise finally disposed of:Claim, and paragraph 5.1 shall apply accordingly.
(i) 5.3 Neither the Purchaser shallnor any Group Company shall make any admission of Liability, and or any agreement or compromise with any Third Party, in relation to any claim from such Third Party to the Purchaser shall procure that extent all or part of any member Liability under such claim would be a liability set forth on Part G (Seller Consent) of Schedule 42 (Certain Litigation Liabilities) without the prior written consent of the Purchaser’s Group shall:
Seller (a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned conditioned, or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim other than a Tax Claim against the Sellers under this Agreement is a result of or in connection with a claim by a third party (a “Third Party Claim”) then:
11.4.1 11.6.1 the Sellers shall have the right, at their discretion and at their own expense, to participate in, or to direct and take exclusive control of, through a counsel of their choice, the defence, negotiation or settlement of any such Third Party Claim. In such case, the Sellers shall conduct the defence of any such Third Party Claim diligently, using reasonable means and defences available to it and the Purchaser shallmay participate in any such proceedings with a counsel of its choice and at its own expense. In addition, the Sellers shall give to the extent reasonably practicable Purchaser and subject its advisors the opportunity to Applicable Law, consult with comment the Seller in relation to the conduct defence of the any such Third Party Claim and shall take consider (without the obligation to accept) the reasonable account comments of the views Purchaser and/or its advisors as to the direction and strategy and contents of the Seller before taking any action in relation defence. The Sellers shall be entitled, after reasonable consultation with the Purchaser and having examined its comments to the extent reasonable, to settle or compromise any such Third Party Claim;
11.4.2 no admissions in relation , provided that the sole relief pursuant to the Third Party Claim such settlement or compromise shall be monetary damages (any other settlement than monetary damages can be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the only with prior written consent of the Seller, such consent Purchaser);
11.6.2 if the Sellers elect not to be unreasonably withheld direct and take exclusive control of the defence, negotiation or delayed;
11.4.3 subject to the Seller indemnifying settlement of any such Third Party Claim, (i) the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shallshall conduct, or the Purchaser shall procure that the members Company conducts, the defence of any such Third Party Claim diligently, in good faith using reasonable means and defences available to it and (ii) the Sellers may participate in any such proceedings with counsel of their choice and at their own expense. In addition, the Purchaser shall give, and shall procure that the Company gives, to the Sellers and their advisors the opportunity to comment the defence of any such Third Party Claim and shall consider (without the obligation to accept) the reasonable comments of the Purchaser’s Group shall, take such action Sellers and/or their advisors as to the Seller may reasonably request direction and strategy and contents of the defence.
11.6.3 With respect to avoid, dispute, deny, defend, resist, appeal, compromise or contest the all cases of defence against Third Party Claim;
11.4.4 the Seller shallClaims, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons Sellers shall cooperate in good faith and take all such information as actions that are reasonably required to terminate or mitigate any Losses and Expenses.
11.6.4 When conducting actions under this Clause 11.6, the Sellers shall be responsible to act in a manner that the commercial interests of the Purchaser, the Sellers and the Company are always protected and no action of the Sellers shall harm in any way the Purchaser, the Sellers or the Company, including the good reputation of the Purchaser, the Sellers or the Company.
11.6.5 For the avoidance of doubt, the Sellers shall not be liable for (i) any Losses and Expenses arising from a Third Party Claim in case if the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the does not comply with its obligations relating to conduct of such Third Party Claim; and
Claim set out in this Clause 11.6, and (ii) shall give the Purchaser any amounts of Losses and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Expenses arising from a Third Party Claim and to have exceeding the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect amount of that Third Party Claim or as of the date when the respective Claim for Repayment based on that Third Party Claim was notified to the Sellers pursuant to Clause 11.2, in case the respective Claim for Repayment is otherwise finally disposed of:
(i) deemed to be accepted by the Purchaser shallSellers pursuant to Clause 11.3, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject nevertheless elects to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice proceed pursuant to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim11.6.2.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Share Purchase Agreement
Conduct of Third Party Claims. If 10.1 The Purchaser shall procure that, if either it or the matter Company or circumstance that may give rise to a Claim other than a Tax Claim is a result Subsidiary becomes aware of or in connection with a claim by a third party which appears to it reasonably likely to give rise to a Warranty Claim (a “Third Party Claim”) thenor that it is likely (in the Purchaser’s reasonable opinion) to be entitled to make a recovery from a third party in respect of circumstances which have given or are likely to give rise to a Third Party Claim, it shall:
11.4.1 (a) as soon as reasonably practicable give to the Seller written notice in reasonable detail given the extent of the information available to the Purchaser shall, to the extent reasonably practicable of all relevant circumstances and subject to Applicable Law, consult with the Seller in relation to those circumstances;
(b) keep the conduct Seller informed of material advice received and material developments which would be likely to affect the amount the subject of a Third Party Claim;
(c) shall not and shall procure that neither the Company nor the Subsidiary shall admit or concede liability or agree a compromise or settlement with a third party without first obtaining the Seller’s written agreement;
(d) save where to do so may breach legal or professional privilege of the Purchaser or the Companies, give the Seller and his advisers reasonable access to the premises and personnel of the Purchaser or the Companies as they may reasonably require and opportunity to examine and copy relevant documents and records and photograph premises, asset or personnel within the control of the Purchaser or the Companies and, if required by the Seller, procure that all personnel of the Purchaser or the Companies having knowledge of or involvement with the facts and circumstances giving rise to the Third Party Claim and shall take reasonable account of the views of afford the Seller before taking any action in relation all reasonable assistance to properly resist, contest, defend or appeal against the Third Party Claim;
11.4.2 no admissions (e) take such action as the Seller requires in relation to the Third Party Claim and permit the Seller (in his own name or in the name of the Purchaser, Company or Subsidiary or in any combination of those names) to conduct, settle, compromise, defend or appeal relevant proceedings and to enforce any relevant rights and entitlements;
(f) use all reasonable endeavours itself, and will procure that the Companies each use their respective reasonable endeavours, to mitigate its or their loss which is or is likely to become the subject matter of a Third Party Claim (but for the avoidance of doubt the Purchaser shall not be made by required to take any steps that may increase the amount of any future Tax liability of the Companies or utilise any Relief of the Companies)
10.2 subject to the Seller having complied with the provisions of paragraph 10.4, without limiting the provisions of sub-paragraph 10.1. where having discharged a liability arising in respect of a Third Party Claim, the Seller requests the assignment to it of any right of the Purchaser or of the Company or Subsidiary to make recovery in whole or in part from any third party, the Purchaser will assign or procure the assignment to the Seller of such right and, if that right is not legally capable of effective assignment will pursue such right on behalf of the Purchaser or any member of Seller and promptly pay over and account to the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;Seller all amounts recovered
11.4.3 10.3 subject to the Seller indemnifying having complied with the Purchaser or member provisions of the Purchaser’s Group concerned against all reasonable costs paragraph 10.4 and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the a Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice Claim having been notified in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall use reasonable endeavours to procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, it and the right to examine and copy Companies shall preserve within its control originals (where it is so entitled) or photograph any assets, accounts, (in every other case) copies of all documents and records (excluding, in each case, other material information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject relevant to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating giving rise to the Third Party Claim and shall promptly forward or procure a right of recovery from a third party in respect of matters which may give rise to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), Third Party Proven Claim relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the relevant Third Party Claim.
11.4.7 10.4 The covenants Seller shall indemnify the Purchaser to its reasonable satisfaction in this Clause 11.4 may be enforced:
(i) respect of all liabilities, costs, charges and expenses that are reasonably and properly incurred by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or any of the Companies as a Group Company, consequence of it complying with its obligations under this paragraph 10 or as a consequence of any actions taken at the Contracts (Rights request of Third Parties) Xxx 0000the Seller in accordance with this paragraph 10.
11.4.8 The provisions of 10.5 Nothing in this Clause 11.4 may be varied or terminated by agreement between the Seller and paragraph 10 shall require the Purchaser (and or the Companies to take any action or refrain from taking any action, if the Purchaser may also release in its reasonable opinion and acting in good faith considers such action or compromise in whole omission is or in part any liability in respect is likely to be materially prejudicial to the goodwill or business of rights or claims contemplated by this Clause 11.4) without the consent of any Group CompanyPurchaser’s Group.
Appears in 1 contract
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim (other than a Tax Claim is an Excess Claim) arises as a result of of, or in connection with with, a claim by liability or alleged liability to a third party (a “Third Party Claim”) ), then:
11.4.1 (a) the Purchaser Buyer shall, upon becoming aware thereof, promptly advise the Warrantors’ Representative thereof (provided that failure by the Buyer to give such notice promptly shall not affect the Buyers’ right to make a Claim against the Warrantors in respect of such matter (or the Warrantors’ liability with respect to such Claim), except if and to the extent reasonably practicable that the Warrantors have been prejudiced by such failure) and subject to Applicable Law, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company makes available to the Warrantors’ Representative such persons and all such information as the Purchaser Warrantors’ Representative may reasonably request for assessingrequire to assess such Third Party Claim;
(b) the Buyer shall procure that the relevant Group Company consults with (and takes into account any reasonable suggestions of) the Warrantors’ Representative in relation to the conduct of any appeal, contestingdispute, disputingcompromise or defence of the Third Party Claim;
(c) the Buyer shall, defendingand shall procure that the relevant Group Company shall, compromising or appealing keep the Warrantors’ Representative informed of the progress of the Third Party Claim; and
(iid) the Buyer shall, and shall give the Purchaser and procure that the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement agreement, settlement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
Claim (bor any part thereof) without prejudice to its ability to defend either (i) the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the prior written consent of the PurchaserWarrantors’ Representative, such consent which will not to unreasonably be unreasonably withheld, conditioned or delayed. If the Purchaser delayed or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000irrevocably withdrawing such Claim.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. 12.4.1 If the fact, matter or circumstance that may give rise to a Claim other than a Tax Claim claim under the Seller Warranties or Clause 5 is a result of or in connection with a claim by a third party (including any regulator, government or governmental authority or Tax Authority) (a “Third Party Claim”) then:
11.4.1 the Purchaser shall, then to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of that the Purchaser or any member of the Purchaser’s Group and the is involved directly in such Third Party Claim Claim:
12.4.2 the Purchaser shall not be compromisedconsult with the relevant Business Seller as regards the conduct of any proceedings arising out of such third party claim, disposed of or settled without the written consent taking into consideration any reasonable request of the Seller, such consent not to be unreasonably withheld or delayedSeller in connection with the claim;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, 12.4.3 the Purchaser shall, or the Purchaser shall procure that the members relevant member of the Purchaser’s Group shall, conduct such claim in a manner which is consistent, in all material respects, with the manner in which the Purchaser (or, as the case may be, the relevant member of the Purchaser’s Group) would, at the relevant time, conduct any Purchaser Third Party Claim; and
12.4.4 the Purchaser shall, to the extent permitted by any Law and Regulations, take such action as the Seller Business Sellers may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise compromise, defend or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of mitigate any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice subject to the Purchaser pursuant being indemnified on an after-Tax basis by the Business Sellers against all Losses which may thereby be incurred and provided that the Purchaser shall not be required to Clause 11.4.5 and until such time take any action which is not consistent in any material respect with the manner in which the Purchaser (or, as the case may be, the relevant member of the Purchaser’s Group) would, at the relevant time, conduct any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Purchaser Third Party Claim or that Third Party Claim is otherwise finally disposed of:Claim. Without limitation to the foregoing (and subject to applicable Law and Regulations):
(i) the Purchaser shall, and the Purchaser shall procure that any member other relevant members of the Purchaser’s Group shall, allow the Business Sellers and their financial, accounting, tax or legal advisers reasonable access to allow them to investigate the fact, matter or circumstance alleged to (or which may) give rise to such Third Party Claim and whether and to what extent any amount is or may be payable in respect of such claim;
(ii) the Purchaser shall, and shall procure that any other relevant members of the Purchaser’s Group shall, disclose to the Business Sellers all material of which it/they are aware which relates to such Third Party Claim and shall, subject to their being paid all reasonable out of pocket costs and expenses, give all such information and assistance, including:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnelpersonnel (including any Relevant Employee with knowledge relating to the relevant facts, matters or circumstances or who can otherwise reasonably assist the Business Sellers);
(b) making such personnel available for factual interviews, preparation for testimony, giving evidence, producing affidavits and other similar activities; and
(c) the right to examine and copy or photograph any assets, accounts, correspondence, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege)records, as the Seller Business Sellers or their financial, accounting or legal advisers may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of ; and
(iii) the Purchaser or shall, and shall procure that any other member members of the Purchaser’s Group concerned but in accordance with the Seller’s instructionsshall, provided at all times take all reasonable steps to maintain any legal privilege that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise exists in relation to that Third Party Claim without the prior written approval any information referred to in this Clause 12.4.4 (including books of the Seller (such approval not to be unreasonably withheldaccount, conditioned or delayed);
(iirecords and correspondence) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation relevant to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants Nothing in this Clause 11.4 may be enforced:
(i) by 12.4.4 shall entitle any Group Company against the Seller; and
(ii) by Business Seller or its advisers to have access to any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability information which relates to legal advice in respect of rights or claims contemplated by this Clause 11.4) without any claim for breach of the consent of any Group CompanyTransaction Documents.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Royal Bank of Scotland Group PLC)
Conduct of Third Party Claims. 10.9.1 If the matter or circumstance that may give rise to a Claim other than a Tax Claim is a result of or in connection with a claim is made by a third party Person against the Buyer or any Group Company, and the Buyer intends to seek compensation from the Sellers for that claim under this clause 10 or clause 12 (a “"Third Party Claim”) then:"), the Buyer must notify the Sellers in writing within a reasonable period.
11.4.1 10.9.2 The Buyer shall keep the Purchaser shall, to the extent reasonably practicable Sellers promptly and subject to Applicable Law, consult with the Seller in relation to the conduct fully informed of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct progress of any Third Party Claim and shall procure that the Sellers are promptly given copies of all relevant communications and other documents (written or otherwise) sent to have any other party to the conduct proceedings or their lawyers or representatives.
10.9.3 The Buyer shall comply with reasonable requests of the Sellers in relation to any Third Party Claim, including giving the Sellers access to premises, personnel, documents and records for the purpose of investigating the matters giving rise to the Third Party Claim.
10.9.4 The Sellers may, at the Sellers’ option, assume at their sole cost and expense the full defence and control of a Third Party Claim if the Sellers acknowledge to the Buyer in writing its obligation to compensate the Buyer in full (subject to the amount limitations in clause 10.7) for any Covered Loss which may be incurred by the Buyer as a result of the Third Party Claim.
10.9.5 If the Sellers assume the defence of any related proceedingsThird Party Claim the Sellers may assert any defence of the Buyer or the Sellers.
10.9.6 If the Sellers undertake the defence of any Third Party Claim, negotiations the Buyer shall, and shall cause each Group Company to, provide the Sellers with reasonable assistance in the defence or appeals;settlement of the Third Party Claim.
11.4.6 10.9.7 The Sellers shall be entitled to settle any Third Party Claim for which the Sellers have assumed the defence if the Seller sends settlement includes a notice to full and unconditional release of the Purchaser pursuant to Clause 11.4.5 Buyer and until such time as any final compromise, agreement, expert determination or non-appealable decision all Group Companies from all liability for the Third Party Claim.
10.9.8 If the Sellers do not assume the defence of a court or tribunal of competent jurisdiction is made Third Party Claim, the Sellers shall be entitled to participate in respect (but not control) the defence of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:with its counsel and at its own expense.
(i) the Purchaser shall, and the Purchaser 10.9.9 The Buyer shall procure that not settle any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the PurchaserSellers, such consent not to be unreasonably withheld, conditioned withheld or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If 10.1 The Purchaser shall procure that, if either it or the matter Company or circumstance that may Subsidiary becomes aware of circumstances which appears to it likely to give rise to a Warranty Claim other than a Tax Claim is a result of or in connection with a claim by a third party (a “Third Party Claim”) thenor that it is or is likely (in the Purchaser’s reasonable opinion) to be entitled to make a recovery from a third party in respect of circumstances which have given or are likely to give rise to a Third Party Claim, it shall:
11.4.1 (a) as soon as reasonably practicable give to the Sellers written notice in reasonable detail given the extent of the information available to the Purchaser shall, to the extent reasonably practicable of all relevant circumstances and subject to Applicable Law, consult with the Seller Sellers in relation to those circumstances;
(b) keep the conduct Sellers informed of material advice received and material developments which would be likely to affect the amount the subject of a Third Party Claim;
(c) shall not and shall procure that neither the Company nor the Subsidiary shall admit or concede liability or agree a compromise or settlement with a third party without first obtaining the Seller’s written agreement;
(d) save where to do so may breach legal or professional privilege of the Purchaser or the Companies, give the Sellers and their advisers reasonable access to the premises and personnel of the Purchaser or the Companies as they may reasonably require and opportunity to examine and copy relevant documents and records and photograph premises, asset or personnel within the control of the Purchaser or the Companies and, if required by the Sellers, procure that all personnel of the Purchaser or the Companies having knowledge of or involvement with the facts and circumstances giving rise to the Third Party Claim and shall take afford the Sellers all reasonable account of the views of the Seller before taking any action in relation assistance to properly resist, contest, defend or appeal against the Third Party Claim;
11.4.2 no admissions (e) take such action as the Sellers require in relation to the Third Party Claim and permit the Sellers (in their own name or in the name of the Purchaser, Company or Subsidiary or in any combination of those names) to conduct, settle, compromise, defend or appeal relevant proceedings and to enforce any relevant rights and entitlements;
(f) use all reasonable endeavours itself, and will procure that the Companies each use their respective reasonable endeavours, to mitigate its or their loss which is or is likely to become the subject matter of a Third Party Claim (but for the avoidance of doubt the Purchaser shall not be required to take any steps that may increase the amount of any future Tax liability of the Companies or utilise any Relief of the Companies) Provided always that if notice of a warranty claim has been given to Axxx Xxxxxxxxxx pursuant to the Axxx XXX and Axxx Xxxxxxxxxx has notified the Purchaser that he wishes to exercise any of his rights under sub-paragraph 10.1(d) or (e) of Schedule 6 of that agreement in relation to a warranty claim thereunder relating to the same subject matter as the Warranty Claim being made against the Sellers then the rights of the Sellers in relation to paragraphs 10.1(c), 10.1(d) and (e) above shall be made by suspended in relation to that Warranty Claim alone.
10.2 Subject to the Seller having complied with the provisions of paragraph 10.4, without limiting the provisions of sub-paragraph 10.1. where having discharged a liability arising in respect of a Third Party Claim, the Seller requests the assignment to it of any right of the Purchaser or of the Company or Subsidiary to make recovery in whole or in part from any third party, the Purchaser will assign or procure the assignment to the Seller of such right and, if that right is not legally capable of effective assignment will pursue such right on behalf of the Purchaser or any member Seller and promptly pay over and account to the Seller all amounts recovered
10.3 Subject to the Seller having complied with the provisions of the Purchaser’s Group paragraph 10.4 and the a Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice having been notified in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall use reasonable endeavours to procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, it and the right to examine and copy Companies shall preserve within its control originals (where it is so entitled) or photograph any assets, accounts, (in every other case) copies of all documents and records (excluding, in each case, other material information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject relevant to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating giving rise to the Third Party Claim and shall promptly forward or procure a right of recovery from a third party in respect of matters which may give rise to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), Third Party Proven Claim relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the relevant Third Party Claim.
11.4.7 10.4 The covenants Seller shall indemnify the Purchaser to its reasonable satisfaction in this Clause 11.4 may be enforced:
(i) respect of all liabilities, costs, charges and expenses that are reasonably and properly incurred by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or any of the Companies as a Group Company, consequence of it complying with its obligations under this paragraph 10 or as a consequence of any actions taken at the Contracts (Rights request of Third Parties) Xxx 0000the Seller in accordance with this paragraph 10.
11.4.8 The provisions of 10.5 Nothing in this Clause 11.4 may be varied or terminated by agreement between the Seller and paragraph 10 shall require the Purchaser (and or the Companies to take any action or refrain from taking any action, if the Purchaser may also release in its reasonable opinion and acting in good faith considers such action or compromise in whole omission is or in part any liability in respect is likely to be materially prejudicial to the goodwill or business of rights or claims contemplated by this Clause 11.4) without the consent of any Group CompanyPurchaser’s Group.
Appears in 1 contract
Samples: Share Sale Agreement (Loton, Corp)
Conduct of Third Party Claims. If the matter or circumstance that may give rise Subject to a Claim other than a Tax Claim is a result of or in connection with a claim by a third party (a “Third Party Claim”) then:
11.4.1 the Purchaser shallClause 11.5.4, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of if the Purchaser or any Seller becomes aware of any third party claims (excluding any claims relating to Tax) against any member of the Purchaser’s Group or any member of the Sellers’ Group, respectively, which might reasonably be expected to give rise to a claim against any Seller or the Purchaser respectively under this Agreement or any Local Transfer Document:
11.5.1 the relevant party (the “First Party”) shall within 30 Business Days give written notice to the other party (the “Second Party”) of the matter and shall consult with the Third Second Party Claim with respect to the matter, provided that any failure on the part of the First Party to comply with this Clause 11.5.1 or Clause 11.5.2 in whole or in part shall not be compromised, disposed of release or settled without absolve the written consent liability of the Seller, such consent not Second Party provided that the Second Party shall be entitled to be unreasonably withheld or delayed;
11.4.3 subject a pro-tanto deduction from their liability to the Seller indemnifying extent their liability is increased or not reduced by such failure on the Purchaser part of the First Party or any other member of the Purchaser’s Group concerned against all reasonable costs and expenses or Sellers’ Group (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claimapplicable);
11.4.4 11.5.2 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third First Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure ensure that any each member of the Purchaser’s Group shall:
or Sellers’ Group (aas applicable) give, shall (subject to being paid all reasonable costs the receipt of a confidentiality undertaking reasonably satisfactory to the First Party) provide to the Second Party and expenses, their advisers all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege)records, as the Seller that Second Party may reasonably request, including instructing such professional within the First Party’s power or control for the purposes of investigating the matter provided that the First Party shall not be obliged to make available to the Second Party or their advisers any advice from the First Party’s legal advisers as to which legal privilege applies and enabling the Seller Second Party to take action referred to in Clause 11.5.4;
11.5.3 the Second Party (at its cost) may nominate to act on behalf take copies of the Purchaser documents or other records, and photograph the premises or assets, referred to in Clause 11.5.2;
11.5.4 subject to the Second Party notifying the First Party on or before the 28th day after the date of receipt of notice under Clause 11.5.1 that it wishes to exercise its rights under this Clause 11.5.4, the First Party shall and shall ensure that each member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser Sellers’ Group (such approval not to be unreasonably withheld, conditioned or delayed); andas applicable) will:
(bi) not make take any admission of liabilityaction and institute any proceedings, agreement or compromise in relation to that Third and give any information and assistance, as the Second Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shallmay reasonably request to:
(a) consult with dispute, resist, appeal, compromise, defend, remedy or mitigate the Purchaser and take reasonable account matter; or
(b) enforce against a person (other than the Second Party or another member of the views of the Purchaser before taking any action Purchaser’s Group or Sellers’ Group (as applicable)) its rights in relation to the Third Party Claim;matter; and
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(dii) not make any admission of liabilityadmit liability in respect of, settlement or compromise of or settle, the Third Party Claim matter without the prior written consent of the PurchaserSecond Party, such consent not to be unreasonably withheld, conditioned withheld or delayed. If , and in relation to all of this Clause 11.5.4 subject to and on the Purchaser or basis that:
(iii) the Second Party shall fully indemnify each member of the Purchaser’s Group fails or Sellers’ Group (as applicable) for its liability for the claim in question and for all Losses which it incurs;
(iv) failure by the First Party to consent to a settlement comply with the provisions of this Clause 11.5 shall not release or compromise, absolve or limit the maximum liability of the Seller Second Party provided that the Second Party shall (without prejudice be entitled to Clause 10) a pro-tanto deduction from their liability to the extent their liability is increased or not exceed reduced by such failure on the full amount part of the proposed settlement First Party or compromise and the Purchaser or any member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from Sellers’ Group (and including) the date the Seller notified the Purchaser of the settlement or compromiseas applicable); and
(ev) indemnify, save as set out in Clause 11.4.6(ii)(d), neither the Purchaser or other First Party nor any member of the Purchaser’s Group concerned against all reasonable costs and expenses or Sellers’ Group (including legal and professional costs and expensesas applicable) shall be under any obligation to take any action or to refrain from taking any action or to allow the Second Party to conduct the defence of a third party claim if the First Party has obtained an opinion from a Queen’s Counsel that may such proceedings are not reasonably likely to be incurred as a result of the Seller assuming conduct of the Third Party Claimsuccessful.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If the matter 13.1 In respect of any fact, matter, event or circumstance that may give rise which comes to a Claim other than a Tax Claim is a the notice of any Purchaser’s Group Undertaking which would or would reasonably be likely to result of or in connection with a claim by a third party against any of them (a “Third Party Claim”) then:
11.4.1 and which, in turn, would or would reasonably be likely to result in a Claim, the Purchaser shall, shall as soon as reasonably practicable give written notice of the Third Party Claim to the extent reasonably practicable and subject to Applicable Law, consult with Vendors specifying in reasonable detail the Seller in relation to the conduct material aspects of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim and shall be made by or on behalf of the Purchaser or any member of the procure that each Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group Undertaking shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and keep the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf Vendor Representative promptly informed of the Purchaser or other member progress of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm provide to the goodwill Vendor Representative and reputation its advisers reasonable access to premises and personnel and to relevant assets, documents and Records within the power or control of the Wider Group or the each Purchaser’s GroupGroup Undertaking for the purposes of investigating the matter and enabling the Vendors to take the action referred to in paragraph 13.1(e) of this Schedule 5;
(c) keep permit the Purchaser informed of all relevant matters relating Vendor Representative (at the Vendors’ cost) to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser take copies of all correspondence and other written communications with such other information, including non-written the documents or records (except information or documents which are protected by legal professional privilege), relating referred to the Third Party Claimin paragraph 13.1(b) of this Schedule 5;
(d) not cease to defend the Third Party Claim or make any admission of liability, settlement liability or any agreement or compromise of in relation to the Third Party Claim without the prior written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; andVendor Representative;
(e) indemnifyconsult with the Vendor Representative and take such action as the Vendor Representative may reasonably request to avoid, save as set out in Clause 11.4.6(ii)(d)resist, dispute, appeal, compromise, remedy or defend the Third Party Claim on the basis that the Vendors shall indemnify the Purchaser or other member of the Purchaser’s Group concerned on demand against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of actions taken at the Seller assuming request of the Vendor Representative; and
(f) allow the Vendor Representative, at its election and own cost, to take over the conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against , provided that the Seller; and
(ii) by any member Vendor Representative shall obtain the prior written consent of the Seller’s Group against Purchaser before entering into any settlement or disposition of such Third Party Claim which would adversely affect the Purchaser or a Purchaser’s Group Company, under the Contracts Undertaking (Rights of Third Parties) Xxx 0000which consent shall not be unreasonably withheld or delayed).
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Share Purchase Agreement (China Lodging Group, LTD)
Conduct of Third Party Claims. 7.1 If the matter a Warranty Claim or circumstance that may give rise to a Tax Covenant Claim other than a Tax Claim is arises as a result of of, or in connection with with, a claim by liability or alleged liability of a Company to a third party (a “Third Party Claim”) then:
11.4.1 the Purchaser shall), to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and then until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that the Third Party Claim or that the Third Party Claim is otherwise finally disposed of:
(a) each Senior Manager shall make available to the Purchaser and the relevant Group Company all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim, shall give the Purchaser and the relevant Group Company reasonable access to its books and records for such purpose during normal business hours on any Business Day and on reasonable notice to such Senior Manager and shall:
(i) co-operate in the preparation, review and signing of any witness statements and exhibits thereto which the Purchaser may reasonably request; and
(ii) if the Purchaser so reasonably requests, attend (at the cost and expense of the Purchaser) any relevant proceedings as a witness to give evidence and prepare appropriately for such attendance; and
(b) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group relevant Company shall:
(a) give, subject to being paid all provide the Senior Managers and Seller Representatives with reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise progress of the Third Party Claim without on request.
7.2 Nothing in this paragraph 7 shall require the provision by any person of any information to the extent such provision would contravene any applicable law or regulation or would breach any obligation of confidentiality owed to any third party or such information is commercially sensitive or legally privileged.
7.3 The covenants in this paragraph 7 may with the prior written consent of the Purchaser, such consent not to Purchaser be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) enforced by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, Senior Managers under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 . The provisions of this Clause 11.4 paragraph 7 may be varied or terminated by agreement between the Seller Senior Managers and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4paragraph 7) without the consent of any Group Company.
7.4 The provisions of this paragraph 7 shall be subject to any rights of the W&I Insurer under the W&I Insurance Policy in relation to the conduct of the relevant Third Party Claim such rights shall not modify or affect the obligations of any Senior Manager under this paragraph 7.
Appears in 1 contract
Samples: Exhibit (Etsy Inc)
Conduct of Third Party Claims. If (a) As soon as practicably possible after receipt by the matter Buyer or circumstance that any CLS Group Company of a notice of any claim which may give rise entitle the Buyer to a Claim other than a Tax Claim is a result of or in connection with make a claim by a third party against the Sellers under the terms of this Agreement (a “Third Party Claim”) then:
11.4.1 ), the Purchaser shallBuyer shall give written notice to the Sellers, provided however that failure to give such notice shall not affect the indemnification provided hereunder (subject to the terms of this Agreement, in particular to the limitations of this Section 8), except to the extent reasonably practicable that the Indemnifying Party is actually and subject to Applicable Lawmaterially prejudiced as a result of such failure.
(b) Within 10 (ten) Business Days following receipt of the notice, consult with the Seller in relation Sellers’ Representative may give notice to the conduct Buyer that the Sellers intend to investigate the matter in view of the potential assumption of the defense, and thereafter Buyer shall permit the Sellers’ Representatives or its designee and their advisors during 20 (twenty) Business Days, or less in a matter of urgency, reasonable access to the relevant employees of the Group Companies or the Buyer or its Affiliates within working hours and, as applicable, documents, information, and records, for the purpose of investigating the matter and enabling the Sellers to take a decision on the assumption of the defense.
(c) The Sellers are entitled to request to assume control of the defense of the Third Party Claim with counsel of their own choice on behalf of the relevant Group Company by delivering a written notice to Buyer within 30 (thirty) Business Days, or less in a matter of urgency, after the first day the Sellers had given access as set forth in Section 8.7.(b), provided that (i) the Sellers bear any costs and expenses directly linked to such defense including, but not limited to, the costs of the relevant CLS Group Company, (ii) the Sellers acknowledge in writing their obligation to fully indemnify the Buyer or the CLS Group Companies, as the case may be, from and against any and all Losses suffered or incurred by any of the CLS Group Companies as a result of, or arising from or based on, the Third Party Claim, and (iii) Sellers’ defense may not be reasonably expected in any material way to impair the ability of any of the CLS Group Companies to conduct its business or to materially impair its reputation or business.
(d) the Sellers decide to assume control of the defense, the Buyer shall and shall take reasonable account procure that the CLS Group Companies will cooperate with the Sellers and their advisers in all respects of the views defense of the Seller before Third Party Claim, including gathering information, documentation and evidence, ensuring access to employees of the CLS Group Companies or of the Buyer or its Affiliates, as applicable, for interviews and presence at trial, and taking any action all such reasonable action, which the Sellers may reasonably request. The Sellers shall keep the Buyer informed of all material developments in relation to the Third Party Claim;
11.4.2 no admissions in relation to , including such information as the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group Buyer may reasonably require, and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against take all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure action that the members of the Purchaser’s Group shall, take such action as the Seller Buyer may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise defend or contest appeal the Third Party Claim;
11.4.4 the Seller shall. The Sellers shall not admit any liability with respect to, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company or settle, compromise or discharge such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and, without the Buyer’s prior written consent, which shall not be unreasonably withheld or delayed.
(iie) shall give If the Purchaser and Sellers do not, or until the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to Sellers do, assume control of the Seller;
11.4.5 subject to 11.4.3defense, the Seller Buyer shall be entitled at its own expense and in its absolute discretion, by notice in writing to keep the Purchaser, to assume conduct Sellers’ Representative informed of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action material developments in relation to the Third Party Claim;
(b) without prejudice , including such information as the Sellers may reasonably require.If the Sellers do not, or until the Sellers do, assume control of the defense, the Buyer shall be entitled to its ability to defend take all steps necessary for the defense of the Third Party Claim. Whether or not the Sellers have assumed control of the defense, conduct the Buyer must not admit any liability with respect to, or settle, compromise or discharge such Third Party Claim with a view to minimising Claim,without the Sellers’ prior written consent, which shall not be unreasonably withheld or delayed.
(f) Nothing in this Section 8.7 shall require the provision by any material harm person of any information to the goodwill and reputation extent such provision would contravene any applicable law or regulation or would breach any duty of confidentiality owed to any third party. If any information is provided by any person (the Wider Group or “Provider”) to any other person (the Purchaser’s Group;“Recipient”) pursuant to those subclauses:
(c) keep a. that information must only be used by the Purchaser informed of all relevant matters relating to Recipient in connection with the Third Party Claim and Section 13.9 shall promptly forward or procure in all other respects apply to be forwarded to the Purchaser copies of all correspondence and other written communications with such other that information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), b. to the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) extent that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforcedinformation is privileged:
(i) no privilege shall be waived by any Group Company against reason of or as a result of its being provided to the SellerRecipient; and
(ii) if a third party requests disclosure by any member of the Seller’s Group against Recipient in relation to that information, the Purchaser or a Group CompanyRecipient shall promptly notify the Provider and, under to the Contracts (Rights of Third Parties) Xxx 0000extent it can do so, itself assert privilege in opposition to that disclosure request. If necessary, Sellers and/or Buyer shall procure that Recipient accords with this provision.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Share Purchase Agreement (Lionbridge Technologies Inc /De/)
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Warranty Claim other than a Tax Claim is arises as a result of of, or in connection with with, a claim by liability or alleged liability to a third party (a “Third Party Claim”) then:
11.4.1 the Purchaser shall), then (subject to the extent reasonably practicable and subject to Applicable Law, consult with provisions of the Seller Tax Deed in relation to any matter which is the subject of a claim under it) the Sellers may elect to assume the conduct of any appeal, dispute, compromise or defence of the Third Party Claim and shall take reasonable account of any incidental negotiations on the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expensesfollowing terms:
(ia) make available to the Sellers shall first indemnify and secure the Purchaser and the relevant Group Company to the Purchasers reasonable satisfaction against all liabilities, charges, costs and expenses which they may incur in taking any such action as the Sellers may require;
(b) the Purchaser shall procure the relevant Group Company to make available to the Sellers such persons and all such information as the Purchaser Sellers may reasonably request require for assessing, contesting, disputing, defending, appealing or compromising or appealing the Third Party Claim; and;
(iic) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s relevant Group shall:
(a) giveCompany takes such action to contest, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and appeal or compromise the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), Third Party Claim as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing be requested by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) Sellers and does not make any admission of liability, agreement agreement, settlement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party ClaimClaim without the approval of the Sellers;
(bd) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) Sellers shall keep the Purchaser promptly informed of all relevant matters relating to the progress of the Third Party Claim and shall promptly forward or procure to be forwarded to provide the Purchaser with copies of all correspondence relevant documents and other written communications with such other information, including non-written records (except information or documents which are protected in their possession as may be requested by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out but nothing in Clause 11.4.6(ii)(d), this paragraph shall require the Purchaser or other member to do anything which in the reasonable opinion of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may Purchaser would be incurred as a result prejudicial in any material respect to the goodwill of the Seller assuming conduct business of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by or any member of the Seller’s Purchaser Group against or to their commercial interests as the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent owner of any Group Companysuch business.
Appears in 1 contract
Conduct of Third Party Claims. Sellers’ Conduct of Third Party Claims: If the matter or circumstance that may give rise to a Claim other than a Tax Claim claim against any of the Sellers under this Agreement is a result of or in connection with a claim by a third party (a “Third Party Claim”) then, without prejudice to the rights of the insurers of the Purchaser’s Group:
11.4.1 11.5.1 the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, consult with the shall notify such Seller in relation to the conduct without delay of the Third Party Claim and shall take reasonable account initiation of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation 11.5.2 such Seller will be requested to give notice to the Purchaser within 15 Business Days after the Purchaser’s notice is given to such Seller pursuant to Clause 11.5.1 above, of such Seller’s intention to pursue such Third Party Claim shall be made by or on behalf and to assume the defense and full control of the Purchaser or any member of the Purchaser’s Group and the such Third Party Claim shall not be compromised, disposed of or settled without with reputable counsel;
11.5.3 in the written consent of event that a Seller gives notice to the SellerPurchaser pursuant to Clause 11.5.2 above, such consent not Seller shall be obliged at its own expense to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 Claim (including making counterclaims or other claims against third parties) in its own name or, as the Seller shallcase may be, subject in each case to being paid all reasonable out-of-pocket costs the name of and expenses:
(i) make available to on behalf of the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to member of the Purchaser, to assume conduct of any Third Party Claim ’s Group concerned and to have the conduct of any related proceedings, negotiations or appealsappeals and shall notify the Purchaser of any progress in such proceeding;
11.4.6 11.5.4 if notice is given to a Seller pursuant to Clause 11.5.1 above of the commencement of any proceeding and such Seller does not, within 15 Business Days after the Purchaser’s notice is given to any Seller, give notice to the Purchaser of its election to assume the defense and full control of such proceeding, such Seller will be bound by any determination made in such proceeding effected by the Purchaser, provided that any compromise or settlement shall require such Seller’s prior written consent, the consent not to be unreasonably withheld or delayed.
11.5.5 if a Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) 11.5.2 the Purchaser shall, shall and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) shall give, subject to their being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege)records, as the relevant Seller may reasonably request, including instructing such professional or legal advisers as the such Seller may nominate to act on behalf of act;
11.5.6 neither the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make nor any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for required to take any damages awarded in excess of the proposed settlement action or compromise and costs incurred refrain from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in taking any action pursuant to this Clause 11.4 11.5, if such action or omission may reasonably be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser considered to be unduly onerous or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000materially prejudicial to it or to its business.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. 11.1 If the matter or circumstance Purchaser becomes aware that may give rise to a Claim other than a Tax Claim is a result of or any claim in connection with a claim writing by a third party might reasonably be expected to result in a Non-Tax Claim or a Seller Indemnity Claim being made by the Purchaser (a “Third Party Claim”) then:
11.4.1 ), the Purchaser shall, subject to the extent reasonably practicable Purchaser being indemnified to the Purchaser’s reasonable satisfaction by the Seller against any Costs:
(a) give notice of the Third Party Claim to the Seller and subject ensure that the Seller and its representatives are given all reasonable information and facilities to Applicable Lawinvestigate it;
(b) not (and shall ensure that each member of the Purchaser Group shall not) admit liability or make any agreement or compromise in relation to the Third Party Claim without the prior written approval of the Seller (not to be unreasonably withheld or delayed);
(c) keep the Seller informed as to the progress of, and consult regularly with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to of, the Third Party Claim;
11.4.2 no admissions (d) use its reasonable efforts to mitigate any Liability of the Seller in relation to respect of the Third Party Claim;
(e) provide such information and assistance as the Seller may reasonably request in connection with the preparation or progress of any action in respect of the Third Party Claim shall be as described in clause 11.1(f) below;
(f) save in respect of any Third Party Claim made by or on behalf any Governmental Entity and subject to the Purchaser, and each relevant member of the Purchaser or any member of Group, being indemnified to the Purchaser’s Group and reasonable satisfaction by the Seller against any Losses suffered or incurred by them as a result of the Third Party Claim shall not be compromisedor compliance with the provisions of this clause 11.1(f) (including any Losses arising from or in connection with the relevant Non-Tax Claim), disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or ensure that each member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, :
(i) take such action as the Seller may reasonably request to avoid, resist, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing defend the Third Party Claim; and
(ii) shall give allow the Seller (if it elects to do so) to take over the conduct of all proceedings and/or negotiations arising in connection with the Third Party Claim, so long as the Seller (A) keeps the Purchaser reasonably informed of the developments in respect of such Third Party Claim; and (B) enables the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled Purchaser (at its own expense and Cost) to participate in its absolute discretion, by notice any such proceedings or negotiations.
11.2 Nothing in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to clause 11.1 will require the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Purchaser Group shallto take any action or omission that might reasonably be expected to result in:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph loss of any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claimloss of, conduct the Third Party Claim with a view to minimising or any material harm adverse amendment to, any approval or authorisation of a Governmental Entity which is material to the goodwill and reputation business of the Wider Group or relevant member of the Purchaser’s Purchaser Group;
(c) keep prejudices the ability of the Purchaser informed of all relevant matters relating to bring a claim against the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party ClaimSeller;
(d) not make any admission award of liability, settlement punitive damages against the Purchaser or compromise any other member of the Third Party Claim without Purchaser Group; or
(e) in the written consent reasonable opinion of the Purchaser, such consent not any effect which is materially prejudicial to be unreasonably withheld, conditioned or delayed. If the Purchaser or member goodwill of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent business of any Group Target Company.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Aktiv Kapital As (Portfolio Recovery Associates Inc)
Conduct of Third Party Claims. If the matter or circumstance that may give rise 10.10.1. The following shall apply in relation to a Claim other than a Tax Claim is a result of or in connection with a claim by a third party (a “any Third Party Claim”) then:
11.4.1 a. the Purchaser and the relevant Group Companies shall notify the Sellers of the relevant Third Party Claim within twenty (20) Business Days of the date upon becoming actually aware thereof;
b. upon request the Purchaser shall, and shall procure that the relevant Group Companies shall, make available to the extent Sellers all such information as the Sellers may reasonably practicable require for assessing the relevant Third Party Claim; and
c. the Purchaser shall not, and subject shall procure that the relevant Group Companies shall not, make any admission of liability, agreement, settlement or compromise in relation to Applicable Lawthe Third Party Claim without the prior written approval of the Sellers (such approval not to be unreasonably withheld or delayed); however at no time the Purchaser shall under no circumstances be required to take an action that is materially prejudicial to the Purchaser's or the relevant Group Companies' goodwill.
10.10.2. The Purchaser shall, and shall procure that the relevant Group Companies shall:
a. keep the Sellers informed in all reasonable detail of the progress of and any relevant development in relation to the Third Party Claim and reasonably consult with the Seller Sellers in relation to the conduct of the Third Party Claim and shall Claim, including any appeal, dispute, compromise or defence in relation thereto; and
b. at all times take into account the reasonable account interests of all of the views of Sellers, the Seller before taking any action in relation Purchaser, and the Group, and not cease to the Third Party Claim;
11.4.2 no admissions in relation to defend the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that the Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the PurchaserSellers, such consent not to be unreasonably withheld, conditioned delayed or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claimmade conditional.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If Subject to Clauses 11.6 and 11.7, if the matter or circumstance that may give rise to a Claim other than a Tax Claim claim against the Seller under this Agreement is a result of or in connection with a claim by a third party (including a claim by a Tax Authority which could result in the Seller being liable under Clause 15.7.4, Schedule 4 (Tax) or for breach of a Seller’s Warranty in paragraph 18 of Schedule 5 (Warranties given by the Seller under Clause 9.1)) (a “Third Party Claim”) then:
11.4.1 11.5.1 until such time (if any) as the Seller assumes control of a Third Party Claim in accordance with Clause 11.5.4, the Purchaser shall, to shall assume conduct of all Third Party Claims (including taking all such actions as set out in Clause 11.5.3) and the extent reasonably practicable and subject to Applicable Law, Purchaser shall consult with the Seller so far as reasonably practicable in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 11.5.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group (including, after Closing, the Target Group Companies) and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, 11.5.3 the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group (including, after Closing, the Target Group Companies) shall, take such reasonable action (or procure the taking of such action) as the Seller may reasonably request consider necessary or appropriate to pursue, enforce, avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 Claim provided that the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs shall pay and expenses:
(i) make available to indemnify the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any each member of the Purchaser’s Group shall:
(aon a Net After-Tax Basis) give, subject to being paid all reasonable upon request for any costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records expenses reasonably incurred (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each casewithout limitation, information the amount of any judicial deposits, and/or the cost of any bank guarantees, or documents that are subject insurance bonds required to common interest privilege)litigate certain matters, as the Seller may reasonably requestor court fees, including instructing such professional or opposing party fees (sucumbência) and/or any other legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(bfees) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed)thereto;
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim claim against the Seller under this Agreement or any Local Transfer Document for breach of any Seller’s Warranty (other than a Tax Claim Warranty) is a result of or in connection with a claim by a third party (a “Third Party Claim”) then:
11.4.1 the Purchaser shall, shall as soon as reasonably practicable give written notice thereof to the extent reasonably practicable Seller and subject to Applicable Law, thereafter shall provide the Seller with periodic updates upon reasonable request and shall consult with the Seller so far as reasonably practicable in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be admitted, compromised, disposed of or settled without the written consent of the Seller, Seller (such consent not to be unreasonably withheld or delayed);
11.4.3 subject to the Seller indemnifying the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the any other members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim (including making counterclaims or other claims against third parties) in the name of and on behalf of the Purchaser or other member of the Purchaser’s Group concerned and to have the conduct of any related proceedings, negotiations or appeals;, but shall not settle such Third Party Claim without the prior written consent of the Purchaser (such consent not to be unreasonably withheld or delayed); and
11.4.6 11.4.5 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of11.4.4:
(i) the Purchaser shall, and the Purchaser shall procure that any other member of the Purchaser’s Group shall:
(a) shall give, subject to their being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege)records, as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;; and
(dc) not make in good faith, take into account and have due regard to any admission of liability, settlement reputational matters or compromise issues arising out of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or for any member of the Purchaser’s Group fails or any of their respective directors, officers, employees or agents which are brought to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and its attention by the Purchaser or a member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party ClaimGroup.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If 13.1. The provisions of this paragraph 13 shall apply in the matter event that any third party brings or circumstance that makes (or threatens to bring or make) any claim, demand, action or proceedings against any of the Buyer or a Buyer’s Group Undertaking which may reasonably be considered likely to give rise to a Claim other than a Tax Claim is a result of or in connection with a claim by a third party (a “Third Party Claim”) then:).
11.4.1 13.2. In the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct event of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the a Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group Buyer shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may soon as reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf practicable [***] give written notice of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without to the prior written approval Sellers’ Representative, specifying in reasonable detail the nature of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice permit the Sellers’ Representative to its ability to defend participate in the Third Party Claim, defence of (but not conduct the or control) such Third Party Claim with a view to minimising any material harm to at the goodwill and reputation expense of the Wider Group or the Purchaser’s GroupSellers’ Representative;
(c) keep the Purchaser Sellers reasonably informed (through the Sellers’ Representative) of the progress of, and all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other informationmaterial developments in relation to, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission provide the Sellers’ Representative with copies of liability, settlement or compromise of all material information and correspondence relating to the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromiseClaim; and
(e) indemnifygive (and cause each relevant Buyer’s Group Undertaking to give) the Sellers’ Representative and/or its professional advisers access at reasonable times (and on reasonable prior notice) to its premises and personnel, save as set out and to any relevant assets, accounts, documents or records within its control, for the purposes of enabling the Sellers to assess the Third Party Claim and to exercise their rights under this paragraph 13.2.
13.3. The Buyer shall have the right in Clause 11.4.6(ii)(d)its sole discretion to conduct the defence of and to settle or resolve such Third-Party Claim. However, without the Purchaser prior written consent of the Sellers’ Representative, which consent will not be unreasonably withheld, delayed or conditioned [***]. In the event that the Sellers’ Representative has consented in writing [***], neither the Sellers’ Representative nor any Seller shall have any power or authority to object [***].
13.4. The Sellers shall indemnify the Buyer in respect of all costs, charges and expenses that are reasonably and properly incurred by the Buyer (or any other member of the PurchaserBuyer’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expensesGroup) that may be incurred as in connection with the defence of a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Share Purchase Agreement (Spring Bank Pharmaceuticals, Inc.)
Conduct of Third Party Claims. If 1.1 The Buyer shall or procure that the matter or circumstance that may give rise to a Claim other than a Tax Claim is a result Company shall inform the Seller in writing of or in connection with a any claim by a any third party (a “Third Party Claim”) then:
11.4.1 the Purchaser shall, which comes to the extent reasonably practicable and subject to Applicable Law, consult with notice of the Buyer or any other member of the Buyer’s Group whereby it appears that the Seller in relation is likely to become liable under any Claim within one month from the conduct of the day on which such Third Party Claim and shall take reasonable account comes to the notice of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by Buyer or on behalf of the Purchaser or any other member of the PurchaserBuyer’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;Group.
11.4.3 subject 1.2 Subject to the Seller indemnifying Buyer being indemnified and secured to its satisfaction in accordance with paragraph 1.4 of this Schedule:
(a) the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser Buyer shall, or the Purchaser and shall procure that the members of the Purchaser’s Group Company shall, take such action and give such information and assistance as the Seller may reasonably request in writing to avoid, dispute, deny, defend, resist, appealmitigate, compromise compromise, or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of defend any Third Party Claim and to have appeal against any judgment given in respect thereof including (without limitation) applying to postpone so far as legally possible the payment of any Taxation; and
(b) on the written request of the Seller, the sole conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as legal proceedings of whatsoever nature arising out of any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim (“Proceedings”) shall be delegated to the Seller. For this purpose, the Buyer shall give or that Third Party Claim is otherwise finally disposed of:
(i) procure to be given to the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, Seller all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing require and shall appoint such solicitors and other professional or legal advisers as the Seller may nominate to act on of behalf of the Purchaser Buyer or other member of the Purchaser’s Group concerned but Companies in accordance with the Seller’s reasonable instructions.
1.3 Where Proceedings are delegated to the Seller in accordance with paragraph 1.2(b) of this Schedule:
(a) the Seller shall keep the Buyer fully and properly informed of the Proceedings, provided that shall consult with the appointment of such adviser Buyer on any matter which is or advisers shall have been approved in writing by the Purchaser (such approval not is likely to be unreasonably withheld, conditioned or delayed)material in relation to any Proceedings and shall take account of all reasonable requirements of the Buyer in relation to such Proceedings; and
(b) the Seller shall not make any admission of liability, agreement settlement or compromise of the Third Party Claim which is the subject of Proceedings, or agree to any matter in relation to that the conduct of such Proceedings which may affect the amount of the liability in connection with such Third Party Claim without the prior written approval of the Seller (Buyer, such approval not to be unreasonably withheld, conditioned withheld or delayed);
(ii) , and provided always that, in the event of the Buyer refusing approval of such settlement or compromise, the Seller shall:
(a) consult with the Purchaser and take reasonable account shall have no liability in respect of any Claim arising there from in excess of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group figure at which it could have settled or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to compromised the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group Buyer shall be liable for any damages awarded in excess of costs incurred since the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and.
(e) indemnify1.4 The Seller shall indemnify and secure the Buyer to its reasonable satisfaction in respect of all costs, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs charges and expenses (including legal reasonably and professional costs and expenses) that may be properly incurred by the Buyer as a result consequence of any actions taken at the request of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(ipursuant to paragraph 1.2(b) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group CompanySchedule.
Appears in 1 contract
Conduct of Third Party Claims. If (a) In the matter event that any claim or circumstance that may Legal Proceeding is asserted or instituted by a Third Party which could give rise to a Claim other than a Tax Claim is a result of or in connection with a claim by a third party Loss for which an Indemnifying Party would be liable to any Indemnifiable Party hereunder (a “Third Party Claim”) then:
11.4.1 ), the Purchaser shallIndemnifiable Party shall with reasonable promptness send to the Indemnifying Party a written notice specifying the nature and grounds of such claim or demand and, to the extent reasonably practicable known and subject determinable, the amount or estimated amount (which estimate is for information only and shall not be conclusive of the final amount of such claim and demand) (a “Third Party Claim Notice”); provided, however, that the prompt giving of such notice shall not be a condition precedent to Applicable Law, consult with the Seller in relation indemnification under this Agreement except to the extent that the Indemnifying Party is materially prejudiced by any delay in receiving such notice.
(b) The Indemnifying Party will be entitled to participate in all aspects of the defense of any Third Party Claim that is the subject of a Third Party Claim Notice. In addition, upon written notice to the Indemnifiable Party given any time prior to the final disposition of such Third Party Claim, the Indemnifying Party will have the right to defend the Indemnifiable Party against the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Person. In the absence of such notification from the Indemnifying Party within twenty (20) Business Days of the receipt by the Indemnifying Party of the Third Party Claim Notice (or in respect of proceedings that require a response within a shorter period of time sufficient to enable the Indemnifiable Party to organize its defense), the Indemnifying Party shall be deemed to have waived such option.
(c) To the extent the Indemnifying Party elects to assume the defense of a Third Party Claim pursuant to Section 11.3 (b), the Indemnifying Party shall conduct such defense in good faith. The Indemnifiable Party shall have the right, if it so notifies the Indemnifying Party, to be consulted in such defense and settlement of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled participate at its own expense and in with counsel of its absolute discretionchoice. In such event, by notice in writing the Indemnifying Party shall afford the Indemnifiable Party and its counsel the opportunity to comment and the right to object (which comments shall be taken into account to the Purchaserextent reasonable and such right to object shall not be unreasonably exercised) with respect to the conduct of the defense and settlement of such Third Party Claim. If requested by the Indemnifying Party, the Indemnifiable Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends, and, if (a) appropriate and related to the claim in question and (b) reasonable in the judgment of the Indemnifiable Party, in making any counterclaim against the person asserting the Third Party Claim or demand, or any cross complaint against any person. The Indemnifying Party shall consult with the Indemnifiable Party with respect to the prosecution of such counter-claim, demand or cross complaint. In such latter case and to the extent the amounts obtained from the counterclaim or cross complaint reduce the indemnifiable Losses of the Indemnifiable Party, the amount obtained as a result thereof shall be deducted from the amount of the indemnification to be paid by the Indemnifying Party to the Indemnifiable Party.
(d) In the event the Indemnifying Party does not assume the defense in respect of the Third Party Claim, the Indemnifiable Party shall conduct the defense of such Third Party Claim in good faith. The Indemnifying Party shall have the right, if it so notifies the Indemnifiable Party, to assume conduct be consulted in such defense of any the Third Party Claim and to have participate at its own expense and with counsel of its choice. In such event, the conduct of any related proceedings, negotiations or appeals;
11.4.6 if Indemnifiable Party shall afford the Seller sends a notice Indemnifying Party and its counsel the opportunity to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, comment and the right to examine object (which comments shall be taken into account to the extent reasonable and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject such right to common interest privilege), as object shall not be unreasonably exercised) with respect to the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf conduct of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment defense of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); andThird Party Claim.
(be) not make any admission From and after the delivery of liability, agreement or compromise in relation to that a Third Party Claim without Notice hereunder, the prior written approval of Indemnifiable Party shall reasonably promptly copy the Seller (such approval not to be unreasonably withheld, conditioned Indemnifying Party with any document received or delayed);
(ii) the Seller shall:
(a) consult sent in connection with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded grant the Indemnifying Party and its representatives all reasonable access to the Purchaser copies books, records and properties of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating the Indemnifiable Party to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of extent reasonably related to the matters to which the Third Party Claim Notice relates. All such access shall be granted during normal business hours and shall be granted under conditions which will not interfere with the business and operations of the Indemnifiable Party.
(f) Any compromise or settlement made or caused to be made by the Indemnifying Party to the Indemnifiable Party, as the case may be, in connection with any Third Party Claim shall be binding upon, and be for the benefit of, the Indemnifying Party or the Indemnifiable Party, as the case may be, in the same manner as if a final order had been entered by a court of competent jurisdiction in the amount of such settlement or compromise; provided, however, that no settlement or compromise shall be entered into by either the Indemnifying Party or the Indemnifiable Party without the express written consent of the Purchaserother Party (which consent, such consent in the case of an Indemnifiable Party, shall not to be unreasonably withheld, conditioned withheld or delayed. If delayed if the Purchaser or member Indemnifying Party has agreed to assume the defense of such Third Party Claim and the settlement provides for an unconditional release of the Purchaser’s Group fails Indemnifiable Party). In the event the Indemnifiable Party refuses to consent to a settlement or compromiseproviding for a monetary payment that provides for such a release and does not impose any other restrictions on the Indemnifiable Party, the maximum liability of the Seller Indemnifying Party shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable to indemnify the Indemnifiable Party for any damages awarded settlement amount or judgment in excess of the proposed amount of such settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claimproposal.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Share Purchase Agreement (Evotec SE)
Conduct of Third Party Claims. 11.1 If the a matter or circumstance that may give rise to a Claim (other than a Tax Claim is to which the provisions of clause 5 of the Tax Deed shall apply) against the Seller under this agreement occurs as a result of of, or in connection with with, a claim by or liability to a third party (a “Third Party Claim”) then:
11.4.1 the Purchaser shall, without prejudice to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct rights of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member insurers of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;Group:
11.4.3 11.1.1 subject to the Seller fully indemnifying the Purchaser or other member of the Purchaser’s Group concerned against any and all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred therebyLosses as a result of complying with this paragraph 11, the Purchaser shall, or the Purchaser shall procure that the any other members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the such Third Party Claim;
11.4.4 the Seller shall, 11.1.2 subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3provisions of clause 11.2, the Seller shall be entitled at its own expense and in its absolute discretionexpense, by notice in writing to the Purchaser, to assume conduct of any take such action as it shall deem reasonably necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest such Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, without limitation, making counterclaims or other claims against third parties) in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act name of and on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance and to have the conduct of any related proceedings or negotiations with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded counsel reasonably satisfactory to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating the Seller shall be deemed to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not have waived its right to be unreasonably withheld, conditioned or delayed. If dispute its liability to the Purchaser or member other members of the Purchaser’s Group fails with respect to consent any Claim as to a settlement or compromise, which it elects to control the maximum liability of the Seller shall (defence without prejudice to Clause 10) not exceed the full amount Seller’s right to dispute the quantum of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; anddamages;
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), 11.1.3 the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result shall not admit, compromise, dispose of or settle such Third Party Claim without the written consent of the Seller assuming (such consent not to be unreasonably withheld or delayed); and
11.1.4 if the Seller makes any request pursuant to sub-clause 11.1.2, the Purchaser shall, and shall procure that any other members of the Purchaser’s Group shall, take all reasonable steps to procure that the Seller has on reasonable notice access to relevant employees and officers of the Purchaser and Group Companies and is provided on reasonable notice with all material correspondence and documentation relating to the claim as the Seller may reasonably request. The Seller agrees to keep all such correspondence and information confidential and to use it only for the purpose of dealing with the relevant claim.
11.2 If the Seller directs the conduct of proceedings or negotiations pursuant to sub-clause 11.1.2, the Seller shall:
11.2.1 keep the Purchaser informed of proposed meetings with any relevant third party, allow an observer appointed on behalf of the Purchaser or the relevant Group Company to attend such meetings and advise the Purchaser or the relevant Group Company to attend such meetings and advise the Purchaser or the relevant Group Company of the outcome of meetings and discussions to which any such observer was not a party;
11.2.2 not make any settlement with the relevant third party without the prior consent of the Purchaser or relevant Group Company (such consent not to be unreasonably withheld or delayed).
11.3 If the matter or circumstance giving rise to the Third Party Claim.
11.4.7 The covenants Claim in this Clause 11.4 may be enforced:
the reasonable opinion of the Purchaser will (i) by any Group Company against have a material adverse impact on the Seller; and
(ii) by any member business of the Seller’s Group against the Purchaser or a Group CompanyCompany or the goodwill of the Hotel or (ii) involves criminal or criminal allegations, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied sub-clause 1.2 shall not apply. In such case, the Purchaser (or terminated by agreement between other relevant member of the Purchaser’s Group) shall have the right to retain control over the conduct of all proceedings and/or negotiations of whatsoever nature arising in connection with such claim in consultation with the Seller and the Purchaser (and shall have regard to the Purchaser may also release or compromise interests of the Seller in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent conduct of any Group Companysuch proceedings and/or negotiations.
Appears in 1 contract
Samples: Share Purchase Agreement (Strategic Hotels & Resorts, Inc)
Conduct of Third Party Claims. If 22.1 The provisions of this clause 22 shall apply in the matter or circumstance that may give rise to a Claim other than a Tax Claim is a result event of or in connection with a claim by a third party (a “any Third Party Claim”) then.
22.2 In the event of a Third Party Claim, the Defendant Party shall:
11.4.1 (a) as soon as reasonably practicable, and in any event with 10 Business Days of the Purchaser shalldate upon which the Defendant Party becomes aware of the Third Party Claim, give written notice of such Third Party Claim to the extent reasonably practicable and subject to Applicable LawDefaulting Party, consult with specifying in reasonable detail the Seller in relation to the conduct nature of the Third Party Claim and shall take reasonable account its connection to the breach(es) of this Agreement by the Defaulting Party;
(b) keep the Defaulting Party fully informed of the views of the Seller before taking any action progress of, and all material developments in relation to to, the Third Party Claim;
11.4.2 no admissions in relation (c) provide the Defaulting Party with copies of all information and correspondence relating to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
22.3 The Defaulting Party shall join, upon Defendant Party’s request, any discussions or dispute settlement procedure (iiwhether amicable, judicial or arbitrational) following a Third Party Claim. Any failure by the Defendant Party to request the Defaulting Party to join such discussions or dispute settlement procedures (whether amicable, judicial or arbitrational) shall give not limit the Purchaser and right of defence of the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Defaulting Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that such Third Party Claim or that Third Party Claim Claim.
22.4 Any hold harmless obligation set out under this Agreement is otherwise finally disposed of:
(i) conditional upon the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shallDefendant Party:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance fully cooperating with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved Defaulting Party in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed)any response and defence as reasonably required; and
(b) not make entering into any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise acknowledging the existence or grounds of the Third Party Claim without the written prior consent of the PurchaserDefaulting Party.
22.5 The Defaulting Party shall indemnify and secure the Defendant Party to its reasonable satisfaction in respect of all costs, such consent not to be unreasonably withheld, conditioned or delayed. If charges and expenses that are reasonably and properly incurred by the Purchaser or member Defendant as a consequence of any actions taken at the request of the Purchaser’s Group fails to consent Defaulting Party in accordance with this clause 22.
22.6 The provisions of clause 22 shall not apply in relation to a settlement Third Party Claim if and to the extent that the application of them would render any policy of insurance maintained by or compromiseavailable to the Defendant Party void or voidable, or entitle the maximum liability of relevant insurer to repudiate or rescind any such policy in whole or in part, or in the Seller shall (without prejudice event that a relevant insurer exercises its right to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming take over conduct of the Third Party Claim.
11.4.7 22.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any Defaulting Party shall have no liability in respect of rights a Third Party Claim to the extent that the liability pursuant to the relevant Third Party Claim arises or claims contemplated is increased as a result of a failure by the Defendant Party to act in accordance with any reasonable request or direction given by the Defaulting Party in accordance with this Clause 11.4clause 22.
22.8 The Defendant Party shall not have any right of set-off (howsoever arising) without the consent in respect of any Group CompanyThird Party Claim and all sums payable by the Defendant Party and any other Party (including the Defaulting Party) under this Agreement shall be paid in full without set-off, counterclaim or other deduction.
22.9 Neither the Defendant Party shall be entitled to recover damages, or obtain payment, reimbursement, restitution or indemnity more than once in respect of the same loss, shortfall, damage, deficiency, breach or other event or circumstance.
Appears in 1 contract
Samples: All Nemo Cooperation Agreement
Conduct of Third Party Claims. 12.7.1 If the matter CEO or circumstance that may chief legal officer of the Seller becomes aware of a written Third Party Claim which might be reasonably expected to result in a Seller Claim under a Buyer Warranty being made, the Seller shall:
(a) give rise to a the Buyer written notice of such Third Party Claim other than a Tax Claim is a result as soon as reasonably practicable (and in any event within [***] of the CEO or in connection with a claim by a third party (a “chief legal officer of the Seller becoming aware of such written Third Party Claim”) then:
11.4.1 the Purchaser shall, together with relevant documentation and information actually available to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation thereto as at the date of such notice; provided that any such notice shall not be deemed to constitute a notice under Clause 12.1.1 unless the Seller otherwise specifies;
(b) consult with the Buyer as to the manner in which such Third Party Claim might be avoided, resolved or compromised, giving all reasonable weight and consideration to proposals for the same made by the Buyer; and
(c) subject to consultation and the provision of information to the Buyer set out in this Clause 12.7.1 above, retain conduct of the such Third Party Claim and shall take reasonable account of the views of the Seller before act reasonably and in good faith in taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations (including making counterclaims or appeals;other claims against third parties).
11.4.6 if 12.7.2 If the Seller sends would be entitled to make a notice to the Purchaser pursuant to Clause 11.4.5 and until such time Seller Claim under a Buyer Warranty as any final compromisea result of, agreementor in connection with, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of then the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise not, and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or procure that no other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Companyshall, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any admit liability in respect of rights such Third Party Claim, and shall procure that such Third Party Claim shall not be compromised, disposed of or claims contemplated settled without:
(a) the Seller giving written notice to the Buyer of the intention to admit, compromise, dispose or settle such Third Party Claim, such notice to contain reasonable details of such Third Party Claim to the extent not already provided to the Seller in accordance with Clause 12.7.1(a);
(b) the Seller promptly providing such further details of the Third Party Claim as may be reasonably requested by this the Buyer for the purposes of developing proposals referred to in Clause 11.412.7.1(c); and
(c) without the consent Seller giving all reasonable weight and consideration to proposals of any Group Companythe Buyer with respect to such Third Party Claim which may be provided by the Buyer within [***] from receipt of the notice referred to in Clause 12.7.2(a) or such shorter period as the Seller may notify to the Buyer as is required to comply with a procedural order or the rules of procedure of a court or arbitral tribunal considering such Third Party Claim.
Appears in 1 contract
Conduct of Third Party Claims. 1.1 If any member of the matter or Purchaser’s Group becomes aware of any circumstance that which may give rise to a claim from a third party which in turn may give rise to a Warranty Claim (other than a Tax Claim is a result of or in connection with a claim by a third party Claim) under this Agreement (a “Third Party Claim”) then:
11.4.1 the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby), the Purchaser shall, or the Purchaser shall procure that the members as soon as reasonably practicable give written notice thereof (including reasonable particulars of the Purchaser’s Group shall, take each such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that circumstance) (a “Notice of Third Party Claim is otherwise finally disposed of:
(iClaim”) to the Purchaser shall, Seller and the Purchaser shall procure that any each member of the Purchaser’s Group shall:
1.1.1 not make any admission of Liability, or any agreement or compromise with any person, body or authority in relation thereto without the prior written consent of the Seller (a) give, subject not to being paid be unreasonably withheld or delayed);
1.1.2 reasonably consult with the Seller with respect to the Third Party Claim and take all reasonable costs action to contest appeal or compromise the Third Party Claim as may be reasonably requested by the Seller to avoid, dispute, resist, appeal, compromise, defend, remedy or mitigate the Third Party Claim;
1.1.3 give the Seller and expensesits professional advisers reasonable access during normal business hours, all to the premises, directors and employees of each of the EDS Entities (and such information other persons as deemed reasonably necessary by the Seller for the purpose of its investigation) as the case may be, and assistance including access to premises and personnel, and the right to examine and copy or photograph any assetsrelevant Assets, accounts, documents and records within the control of any member of Purchaser’s Group (excludingto the extent the same are not privileged) to enable the Seller and its professional advisers to examine the same and take photographs or photocopies thereof at its own expense and as may be reasonably required in the event the Seller takes control of the relevant matter pursuant to this paragraph 1, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably requestagreeing to (i) keep all such information confidential and to use it only for the purpose of assessing the Third Party Claim, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other and (ii) pay all reasonable third party costs and expenses incurred by any member of the Purchaser’s Group concerned but in accordance with connection therewith and the Seller may take copies of the documents or records, and photograph the premises or Assets, referred to in this paragraph;
1.1.4 allow the Seller (or the relevant member of the Seller’s instructionsGroup nominated by the Seller), upon notice to the Purchaser, to take over the conduct of all Proceedings and/or negotiations arising in connection with the Third Party Claim and to take such action as the Seller (or the relevant member of the Seller’s Group nominated by the Seller) deems necessary or desirable to avoid, dispute, defend, appeal, compromise, contest or deny any claim or Liability on behalf of the relevant member of the Purchaser’s Group, provided that that:
(a) the appointment Seller (or the relevant member of such adviser or advisers shall have been approved in writing the Seller’s Group nominated by the Purchaser Seller) employs legal counsel of a reputable law firm reasonably acceptable to the Purchaser;
(such approval not to b) all costs and expenses of the Purchaser’s Group in connection with conduct by the Seller (or the relevant member of the Seller’s Group nominated by the Seller) of the Third Party Claim shall be unreasonably withheld, conditioned borne by the Seller (or delayedthe relevant member of the Seller’s Group nominated by the Seller); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(iic) the Seller shall:
(a) consult with the Purchaser shall not and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or no member of the Purchaser’s Group shall be liable for required to take any damages awarded in excess of action or to omit to do anything which, on a reasonable view, would reasonably be expected to have a material adverse effect (i) on the proposed settlement EDS Business or compromise and costs incurred from (and includingii) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member reputation of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred taken as a result of the Seller assuming conduct of the Third Party Claimwhole.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Share and Asset Purchase Agreement (Huntsman International LLC)
Conduct of Third Party Claims. 8.1 If the matter or circumstance that may give rise to a Warranty Claim other than a Tax Claim is arises as a result of of, or in connection with with, a claim by liability or alleged liability to a third party (a “Third Party Claim”) then:
11.4.1 the Purchaser shall), to the extent reasonably practicable and subject to Applicable Law, consult with then the Seller in relation may elect to assume the conduct of any discussions, legal proceedings, dispute, compromise or defence of the Third Party Claim and shall take reasonable account of any incidental negotiations on the views of the Seller before taking any action in relation to the Third Party Claim;following terms:
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expensesa) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s relevant Group shall, take Company takes such action as the Seller may reasonably request to avoidaccess, contest, appeal, dispute, deny, defend, resist, appeal, defend or compromise or contest the Third Party Claim;
11.4.4 Claim as may be requested by the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) does not make any admission of liability, agreement agreement, settlement or compromise in relation to that the Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);Seller; and
(iib) the Seller shallshall keep the Purchaser informed of the progress of the Third Party Claim and provide the Purchaser with copies of all relevant documents and such other information in its possession as may be reasonably requested by the Purchaser.
8.2 Nothing in this paragraph 8 shall require the provision by any person of any information to the extent such provision would contravene any applicable law or regulation or would breach any obligation of confidentiality owed to any third party. If any information is provided by any person (the Provider) to any other person (the Recipient) pursuant to this paragraph 8:
(a) consult that information shall only be used by the Recipient in connection with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and the provisions of clause 12 shall promptly forward or procure in all other respects apply to be forwarded to the Purchaser copies of all correspondence and other written communications with such other that information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(eb) indemnify, save as set out in Clause 11.4.6(ii)(d), to the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) extent that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforcedinformation is privileged:
(i) no privilege shall be waived by any Group Company against reason of or as a result of its being provided to the SellerRecipient; and
(ii) if a third party requests disclosure by any member of the Seller’s Group against Recipient in relation to that information, if the Purchaser Recipient is the Seller or the Purchaser, the Recipient shall or, if the Recipient is a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and shall procure that the Purchaser may also release or compromise Recipient shall promptly notify the Provider and, to the extent it can do so, itself assert privilege in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Companyopposition to that disclosure request.
Appears in 1 contract
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim other than a Tax Claim claim against the Seller under this Agreement is a result of or in connection with a claim by or liability to a third party (a “Third Party Claim”) then:
11.4.1 22.3.1 no admission of the Third Party Claim shall be made by or on behalf of the Purchaser shallor any other member of the Purchaser's Group and the Third Party Claim shall not be compromised, to disposed of or settled without the extent reasonably practicable and subject to Applicable Law, prior written consent of the Seller;
22.3.2 the Purchaser shall consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, 22.3.3 the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise, contest, dispose of any or appeal the Third Party Claim or liability (including, without limitation, making counterclaims or other claims against third parties) in the name of and on behalf of the Purchaser or other member of the Purchaser's Group concerned and to have the conduct of any related proceedings, negotiations or and appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) 22.3.4 the Purchaser shall, and the Purchaser shall procure that any other members of the Purchaser's Group shall, take such action as the Seller may reasonably request to (i) avoid, dispute, deny, defend, resist, appeal, compromise, contest dispose of or appeal the Third Party Claim, or (ii) to assist the Seller taking such action as it deems necessary under clause 22.3.3, provided all reasonable costs thereof shall be borne by the Seller; and
22.3.5 the Purchaser shall give, and the Purchaser shall procure that any other member of the Purchaser’s 's Group shall:
(a) shall give, subject to their being paid all reasonable costs and expensesexpenses by the Seller, all such information and assistance including access to premises and personnel, personnel and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege)records, as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s 's Group concerned concerned, but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If the matter 14.1 In respect of any fact, matter, event or circumstance that may give rise of which any member of the Buyer Group or any member of the Ardutch Group (in respect of a liability of Whirlpool) or the Whirlpool Group (in respect of any liability of Ardutch) becomes aware, which is likely to a Claim other than a Tax Claim is a result of or in connection with a claim by a third party against any of them (a “Third Party Claim”) then:
11.4.1 the Purchaser shalland which, in turn, is likely to the extent reasonably practicable and subject to Applicable Law, consult with the Seller result in relation to the conduct of the Third Party a Warranty Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party (other than a Tax Warranty Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by ) or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred therebyan Indemnity Claim, the Purchaser shall, Buyer or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
Ardutch (i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim a liability of Whirlpool) or that Third Party Claim is otherwise finally disposed of:
Whirlpool (i) the Purchaser shallin respect of any liability of Ardutch), and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may soon as reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf practicable give written notice of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without to the prior written approval relevant Seller specifying in reasonable detail the material aspects of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend keep the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation relevant Seller reasonably informed of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed progress of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(c) provide the relevant Seller with copies of all material correspondence or other documents relating to the Third Party Claim requested by the relevant Seller, subject always to legal professional privilege and any confidentiality obligations that are binding on any member of the Buyer Group;
(d) consult with the relevant Seller regarding the conduct of the Third Party Claim;
(e) not cease to defend the Third Party Claim or make any admission of liability, settlement liability or any agreement or compromise of in relation to the Third Party Claim without the prior written consent of the Purchaserrelevant Seller, such consent which shall not to be unreasonably withheld, conditioned withheld or delayed. If ;
(f) take such action as the Purchaser or member of the Purchaser’s Group fails relevant Seller may reasonably request to consent to a settlement or avoid, resist, dispute, appeal, compromise, remedy or defend the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromiseThird Party Claim; and
(eg) indemnifysave in circumstances where such Third-Party Claim is likely to give rise to a Fundamental Warranty Claim, save as set out allow the relevant Seller, at its election (in Clause 11.4.6(ii)(dwriting), to take over the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants Claim (the relevant Seller’s right to continue to take over the conduct of such Third Party Claim to be at all times subject to the proviso at the end of this paragraph 14), in this Clause 11.4 may be enforcedwhich case:
(i) the Buyer shall:
(A) delegate the conduct of any proceedings in respect of the Third Party Claim to the relevant Seller;
(B) retain such legal advisers as nominated by any the relevant Seller to act on behalf of the relevant member(s) of the Buyer Group Company against in relation to the Third Party Claim in accordance with the relevant Seller’s instructions (provided the Buyer is entitled to engage its own separate legal advisers, at its own cost and expense); and
(C) procure that its Representatives provide such information and assistance as the relevant Seller or the appointed legal advisers may reasonably require in connection with the conduct of the Third Party Claim (subject to the relevant Seller paying all reasonable cost and expenses of such Representatives in providing such information and assistance); and
(ii) the relevant Seller shall:
(A) keep the Buyer reasonably informed of the progress of the Third Party Claim;
(B) provide the Buyer upon request with copies of all material correspondence or other documents relating to the Third Party Claim requested by the Buyer, subject always to legal professional privilege and any confidentiality obligations that are binding on the Seller or any of its Affiliates;
(C) use reasonable endeavours to consult with the Buyer regarding the conduct of the Third Party Claim and not to take any material action in relation to the conduct of such Third Party Claim without having first used all reasonable endeavours to consult with the Buyer about the same; and
(D) not cease to defend the Third Party Claim or make any knowing admission of liability or enter into any agreement or compromise in relation to such Third Party Claim without prior consultation with the Buyer, provided that nothing in this paragraph 14 requires any admission, agreement, compromise, action or omission by the Buyer where, in the reasonable opinion of the Buyer (which, in the case of paragraph 14.1(g)(ii), has been communicated to the Seller), such admission, agreement, compromise, action or omission would: (i) be materially prejudicial to the business, goodwill or reputation of any member of the Buyer Group or any member of the Ardutch Group or the Whirlpool Group; (ii) be misleading or inaccurate in any material respect; or (iii) materially affect any member of the Buyer Group’s future Tax liability.
14.2 If a Seller exercises its rights under paragraph 14.1(g), it shall indemnify the Buyer against, and pay on demand (on a euro for euro basis) an amount equal to all incremental costs and expenses that are reasonably and properly incurred by any member of the Seller’s Buyer Group against as a consequence of that Seller taking over conduct of the Purchaser Third Party Claim and shall (subject always to the limitations on liability set out in this Schedule 7) accept liability for any Warranty Claim or a Group Company, under Indemnity Claim which results from the Contracts (Rights of Third Parties) Xxx 0000Party Claim.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If (a) The Vendor may within 20 Business Days from the matter or circumstance that may give rise to date of time receipt of a Claim Notice (or if the Vendor becomes aware by any other than means of a Tax Claim is a result of or in connection with a claim by a third party (a “Third Party Claim”) then:
11.4.1 elect by written notice given to the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expensesto:
(i) make available to take over the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing conduct of the Third Party Claim; and
(ii) shall give take such actions as the Vendor may decide about the Third Party Claim, including to negotiate, defend or settle the Third Party Claim and to recover costs incurred as a consequence of the Third Party Claim from any person.
(b) Where the Vendor takes over the conduct and/or defence of any Third Party Claim under this clause 9.10, the Vendor must:
(i) afford the Purchaser the opportunity to consult with the Vendor on all matters of significance for the goodwill of the Business; and
(ii) at reasonable and regular intervals provide the Purchaser with written reports concerning the conduct, negotiation, control, defence and outcome or settlement of the Third Party Claim.
(c) The Purchaser must take, and must procure that the relevant Company Group Company reasonable Member takes, all steps necessary to allow the Vendor to conduct a Third Party Claim under this clause 9.10 including to:
(i) take all action and render all assistance reasonably requested by the Vendor in connection with its conduct of the Third Party Claim;
(ii) not admit liability for, negotiate, enter into any agreement about, settle or compromise the Third Party Claim without the Vendor’s prior written consent;
(iii) allow the Vendor to negotiate, enter into any agreement about, settle or compromise the Third Party Claim as the Vendor considers appropriate; and
(iv) provide the Vendor with access to its premises (with the right to take copies) and make available to its the Vendor all relevant personnel, relevant documents, books and records reasonably required for such the purpose during normal business hours on any Business Day following reasonable notice being given to of the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and Claim.
(d) For as long as the Vendor has not elected to have take over the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision defence of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed ofunder clause 9.10:
(i) the Purchaser shall, and may take such actions as the Purchaser shall procure that any member may decide about the Third Party Claim, including to negotiate, defend and/or settle the Third Party Claim and to recover costs incurred as a consequence of the Purchaser’s Group shall:Third Party Claim from any person;
(aii) givethe Purchaser must at reasonable and regular intervals provide the Vendor with written reports concerning the conduct, subject to being paid all reasonable costs and expensesnegotiation, all such information and assistance including access to premises and personnelcontrol, and the right to examine and copy defence and/or outcome or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf settlement of the Purchaser or other member of Third Party Claim and must not settle the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller Vendor (such approval which must not to be unreasonably withheld, conditioned or delayed);
(iiiii) the Seller shall:
(a) Purchaser must afford the Vendor the opportunity to consult with the Purchaser and take reasonable account on matters of the views of the Purchaser before taking any action significance in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claimconduct, conduct the Third Party Claim with a view to minimising any material harm to the goodwill negotiation and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(iiiv) by any member of the SellerVendor must render to the Purchaser, at the Purchaser’s Group against the Purchaser or a Group Companyexpense, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and all such assistance as the Purchaser may also release or compromise reasonably require in whole or in part disputing any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group CompanyThird Party Claim.
Appears in 1 contract
Conduct of Third Party Claims. 11.2.1 If the matter or circumstance that may give rise to a Claim other than against the Claimed Party under this Agreement (including a Claim for breach of the Tax Warranties or a Claim under the Tax Indemnity) is a result of or in connection with a claim Claim by or liability to a third party (a “Third Party Claim”) then:
11.4.1 (i) The Claiming Party shall use its reasonable endeavours to ensure that the Purchaser shall, Claimed Party is given all reasonable facilities to investigate the relevant Claim or liability to a third party;
(ii) to the extent reasonably practicable and subject to Applicable Lawapplicable, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim such third party claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group Claiming Party and the Third Party Claim shall not be compromised, disposed of or settled without prior consultation with the written consent of the Seller, such consent not to be unreasonably withheld or delayedClaimed Party;
11.4.3 (iii) subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs Claiming Party and expenses (including its Affiliates being entitled to employ its own legal and professional costs and expenses) that may be incurred therebyadvisers, the Purchaser shall, or the Purchaser Claiming Party shall procure take any action that the members of the Purchaser’s Group shall, take such action as the Seller may Claimed Party reasonably request requests to avoid, resist, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claimdefend that relevant Claim or liability to a third party;
11.4.4 (iv) it is agreed that the Seller shallClaiming Party shall have the final decision in relation to any settlement, subject in each case to being paid all reasonable out-of-pocket costs and expenses:compromise or conduct of any action proceeding or Claim.
(i) make available 11.2.2 The rights of the Claimed Party under this clause shall only apply if it gives notice to the Purchaser and Claiming Party in writing of its intention to exercise its rights within 10 Business Days of the Claiming Party giving notice of the relevant Group Company such persons and all such information as Claim or liability to a third party. If the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Claimed Party Claim; and
(ii) shall does not give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose notice during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3that period, the Seller Claiming Party shall be entitled at its own expense and in its absolute discretiondiscretion to settle, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreementor resist any action, expert determination proceedings or non-appealable decision claim out of a court or tribunal of competent jurisdiction is made in respect of that Third Party which the relevant Claim or that Third Party Claim is otherwise finally disposed of:liability to a third party may arise.
11.2.3 Neither WireCo nor any of its Affiliates (iincluding the COS Group Companies after Closing) the Purchaser shall, and the Purchaser shall procure that be required to take any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy action or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before refrain from taking any action pursuant to this clause if the action or omission requested would, in relation the reasonable opinion of the WireCo, be materially prejudicial to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation business of the Wider COS Group Companies, WireCo or the Purchaser’s Group;
(c) keep the Purchaser informed any of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayedtheir respective Affiliates. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.12 Confidentiality
Appears in 1 contract
Samples: Share Purchase Agreement
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim other than claim against any Seller under this Agreement (excluding claims for breach of a Tax Claim Warranty) is a result of or in connection with a claim by or liability to a third party (a “Third Party Claim”) thenthen without prejudice to any relevant rights of the insurers of the Purchaser’s Group:
11.4.1 the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 13.5.1 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any other member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the relevant Seller, ;
13.5.2 the Purchaser shall consult with the relevant Seller in relation to the conduct of the Third Party Claim and take reasonable account of the views of the relevant Seller before taking any action in relation to the Third Party Claim;
13.5.3 subject to the Sellers indemnifying the Purchaser or other members of the Purchaser’s Group concerned against any costs or expenses in respect of taking such action and any Losses incurred by such persons as a result of taking any such action without the prior consent of the Purchaser (such consent not to be unreasonably withheld or delayed;
11.4.3 subject ), the relevant Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Seller indemnifying Purchaser, to take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim or liability (including, without limitation, making counterclaims or other claims against third parties) in the name of and on behalf of the Purchaser or other member of the Purchaser’s Group concerned and to have the conduct of any related proceedings, negotiations or appeals;
13.5.4 subject to the Sellers indemnifying the Purchaser or other members of the Purchaser’s Group concerned against all reasonable any costs or expenses in respect of taking such action and expenses any Losses incurred by such persons as a result of taking any such action without the prior agreement of the Purchaser (including legal and professional costs and expenses) that may such agreement not to be incurred therebyunreasonably withheld or delayed), the Purchaser shall, or the Purchaser shall procure that the any other members of the Purchaser’s Group shall, take such action as the relevant Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) 13.5.5 the Purchaser shall, and the Purchaser shall procure that any member other members of the Purchaser’s Group shall:
(a) shall give, subject to their being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, personnel and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege)records, as the relevant Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned concerned, but in accordance with the relevant Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make 13.5.6 the Sellers shall keep the Purchaser reasonably informed of all material matters relating to any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval in respect of the Seller (such approval not which it is conducting proceedings as referred to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim Clause 13.5.3 and shall promptly forward or procure to be forwarded to the Purchaser copies of all material correspondence and other material written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to any such claim unless, in the Third Party Claim;
(d) not make any admission of liability, settlement or compromise opinion of the Third Party Claim without the written consent of the Purchaser, Sellers (acting reasonably) any privilege existing in any such consent not to materials would thereby be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claimlost.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Share Purchase Agreement (Sterlite Industries (India) LTD)
Conduct of Third Party Claims. If 9.1 The following provisions of this clause 9 shall:
9.1.1 not apply to any claims under the matter Tax Deed; and
9.1.2 only apply (with the exception of clause 9.2 which shall apply) to the extent that such third party claim, when taken in aggregate with all other Claims, does not exceed (at any time) the excess under the Warranty Insurance specified in clause 7.5 herein.
9.2 The Buyer shall inform, or circumstance shall procure that may give rise to a Claim other than a Tax Claim is a result the Company shall inform, the Seller in writing of or in connection with a any claim by a any third party (a “Third Party Claim”) then:
11.4.1 which comes to the Purchaser shall, notice of the Buyer or any other member of the Buyer’s Group whereby it appears that the Seller is likely to become liable under any Claim within 14 days from the day on which such Third Party Claim comes to the notice of the Buyer or other member of the Buyer’s Group PROVIDED that failure to so inform the Seller shall not relieve any indemnification obligation of the Seller except to the extent reasonably practicable and subject to Applicable Law, consult with that the Seller has actually been prejudiced by such failure.
9.3 Subject to clause 9.6 and the Buyer being indemnified and secured to its satisfaction in relation to the conduct of the Third Party Claim accordance with clause 9.5 and shall take reasonable account of the views of provided that the Seller before taking has accepted in writing its obligation to pay the Buyer any action in relation to liability which may be suffered by the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser Buyer (or any member of the PurchaserBuyer’s Group and the Group) in relation to any Third Party Claim shall not be compromised, disposed of or settled without Claim:
9.3.1 the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser Buyer shall, or the Purchaser and shall procure that the members Company and any of the Purchaser’s Group its Subsidiaries shall, take such action and give such information and assistance as the Seller may reasonably request in writing to avoid, dispute, deny, defend, resist, appealmitigate, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of defend any Third Party Claim and to have appeal against any judgment given in respect thereof including (without limitation) applying to postpone so far as legally possible the payment of any Taxation; and
9.3.2 on the written request of the Seller, the sole conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as legal proceedings of whatsoever nature arising out of any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim (“Proceedings”) shall be delegated to the Seller. For this purpose, the Buyer shall give or that Third Party Claim is otherwise finally disposed of:
(i) procure to be given to the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, Seller all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing require and shall appoint such solicitors and other professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser Buyer or other member of the Purchaser’s Group concerned but Company in accordance with the Seller’s instructions.
9.4 Where Proceedings are delegated to the Seller in accordance with clause 9.3.2:
9.4.1 the Seller shall keep the Buyer fully and promptly informed of the Proceedings, provided that shall consult the appointment of such adviser Buyer on any matter which is or advisers shall have been approved in writing by the Purchaser (such approval not is likely to be unreasonably withheld, conditioned or delayed)material in relation to any Proceedings and shall take account of all reasonable requirements of the Buyer in relation to such Proceedings; and
(b) 9.4.2 the Seller shall not make any admission of liability, agreement settlement or compromise of the Third Party Claim which is the subject of Proceedings, or agree to any matter in relation to that the conduct of such Proceedings which may affect the amount of the liability in connection with such Third Party Claim without the prior written approval of the Seller (Buyer, such approval not to be unreasonably withheldwithheld or delayed and provided always that, conditioned in the event of the Buyer refusing approval of such settlement or delayed);
(ii) compromise, the Seller shall:
(a) consult with the Purchaser and take reasonable account shall have no liability in respect of any Claim or Indemnity Claim arising therefrom in excess of the views of figure at which it could have settled or compromised the Purchaser before taking any action in relation to the relevant Third Party Claim;. The Buyer shall be liable for any costs incurred since the proposed date of settlement or compromise.
(b) without prejudice 9.5 Where the Seller takes over the conduct of any Proceedings pursuant to the provisions of clause 9.3.2, the Seller shall indemnify and secure the Buyer to its ability reasonable satisfaction in respect of all costs, charges and expenses incurred by the Buyer as a consequence of any actions taken at the request of the Seller pursuant to defend clause 9.3.
9.6 If the Third Party Claim, conduct Buyer (or relevant member of the Third Party Claim with a view to minimising any material harm Buyer’s Group) can show to the goodwill and reputation reasonable satisfaction of the Wider Group or Seller that the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim merits and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise quantum of the Third Party Claim without the written consent of the Purchaser, are such consent not that it would be unreasonable for such action to be unreasonably withheld, conditioned taken given the likely detrimental effect to its (or delayed. If the Purchaser Buyer’s Group) reputation or member of the Purchaser’s Group fails goodwill or significantly increase its potential liability in relation to consent to a settlement or compromisesuch Third Party Claim, the maximum liability of the Seller suggested action shall (without prejudice not be required to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded taken in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the relation to such Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Share Purchase Agreement (Global Traffic Network, Inc.)
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim claim against the Seller under this Agreement or any Local Transfer Document for breach of any Seller’s Warranty (other than a Tax Claim Warranty) is a result of or in connection with a claim by a third party (a “Third Party Claim”) then:
11.4.1 the Purchaser shall, shall as soon as reasonably practicable give written notice thereof to the extent reasonably practicable Seller and subject to Applicable Law, thereafter shall provide the Seller with periodic updates upon reasonable request and shall consult with the Seller so far as reasonably practicable in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be admitted, compromised, disposed of or settled without the written consent of the Seller, Seller (such consent not to be unreasonably withheld or delayed;); and
11.4.3 subject to the Seller indemnifying the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the any other members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 , provided that this Clause 11.4.3 shall not apply where the Seller shall, subject claim by the third party relates to matters or circumstances referred to in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising paragraph 4 or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct 9 of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, Schedule 18 and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and then have the right to examine and copy or photograph any assets, accounts, documents and records conduct the claim at its discretion (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilegeClauses 11.4.1 and 11.4.2), as provided that failure to give notice in accordance with Clause 11.4.1 shall not affect the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf rights of the Purchaser or other member to make a relevant claim under this Agreement for breach of the Purchaser’s Group concerned but in accordance with the any Seller’s instructionsWarranty, provided except that the appointment of such adviser or advisers failure shall have been approved be taken into account in writing by determining the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice for such claim to Clause 10) not exceed the full extent the Seller establishes that the amount of the proposed settlement it is increased, or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnifyis not reduced, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claimsuch failure.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Share and Business Sale Agreement (Glaxosmithkline PLC)
Conduct of Third Party Claims. If the matter or circumstance that may is reasonably likely to give rise to a Claim claim against a Seller (excluding the Tax Covenant) for breach of any Warranty (other than a Tax Claim Warranty) is a result of or in connection with a claim by a third party (a “Third Party Claim”) then:
11.4.1 the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of (A) the Purchaser or any other Seller shall as soon as reasonably practicable give written notice thereof to that relevant Seller (with copy to the other Seller);
(B) the Sellers shall procure that the Purchaser shall provide such reasonable information and access during Working Hours to personnel, premises, books, records and documents (including in electronic form but excluding access to legally privileged information or which would result in a breach of Applicable Law) to the relevant Seller or other member of the Purchaserrelevant Seller’s Retained Group and their professional advisors as the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayedrelevant Seller may reasonably request;
11.4.3 (C) subject to the relevant Seller indemnifying and holding harmless the Purchaser or member of (or, as the Purchaser’s Group concerned case may be, the other Seller) against all reasonable costs and expenses (including legal and professional costs and expenses) that may be suffered or incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and to take the sole conduct of such claims, actions or demands as the relevant Seller may deem appropriate in its absolute discretion, by notice in writing to the name of the Purchaser, provided that the relevant Seller has consulted with the Purchaser prior to assume conduct of any Third Party Claim doing so, and in that connection shall give or cause to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice be given to the Purchaser pursuant to Clause 11.4.5 relevant Seller all such assistance as it may reasonably require in avoiding, disputing, resisting, settling, compromising, defending or appealing any such claim, action or demand and until shall instruct such time solicitors or other professional advisers as any final compromise, agreement, expert determination that the relevant Seller or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any such other member of the Purchaserrelevant Seller’s Retained Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser Purchaser, as appropriate, but to act in accordance with the instructions of the relevant Seller or other member of the Purchaser’s Group concerned but in accordance with the relevant Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Retained Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If the (a) Where a matter or circumstance arises that may could give rise to a Claim other than a Tax Claim is a result of or in connection with a claim by a third party (a “Third Party Warranty Claim”) then, the Buyer shall:
11.4.1 the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, (i) consult with the Senior Management Sellers’ Representative and the Institutional Seller as soon as reasonably practicable with regard to any actual or proposed developments relating to the matter in question and provide the Sellers with copies of all correspondence and documents in relation to that matter;
(ii) where practicable, not admit liability in respect of or settle or compromise the conduct matter in question (or offer to do so) without prior consultation with the Senior Management Sellers’ Representative and the Institutional Seller;
(iii) consult with the Senior Management Sellers’ Representative and the Institutional Seller as to any ways in which the matter might be avoided, disputed, resisted, mitigated, settled, compromised, defended or appealed; and
(iv) take such action, at the written request of the Third Party Claim and shall take reasonable account of Sellers, as the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group Senior Management Sellers and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Institutional Seller may reasonably request require, to avoid, dispute, deny, defend, resist, appealmitigate, compromise settle, compromise, defend or contest appeal the Third Party Claimthird party claim, provided that;
11.4.4 (b) the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expensesprovisions of paragraph 4 shall not apply:
(i) make available to where the Purchaser and subject matter of the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising Warranty Claim involves a claim by or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations against a material customer or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member supplier of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf business of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed)Companies;
(ii) to any matters which would require the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group Buyer or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against to breach a contractual or legal obligation existing at the Sellerdate hereof or waive any legal privilege; andor
(iiiii) if the relevant actions or steps required by any member the Senior Management Sellers and the Institutional Seller would conflict with the Buyer's obligations under the terms of the Seller’s Group against Insurance Policy. Subject to the Purchaser or a Group Company, Buyer's obligations under the Contracts (Rights terms of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement the Insurance Policy, if there is any dispute between the Seller Sellers and the Purchaser (and the Purchaser may also release or compromise in whole or in part any Buyer as to whether liability in respect of rights any third party claim should be admitted or claims contemplated whether that claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Senior Management Sellers’ Representative and the Institutional Seller and the Buyer or in default of agreement on or before the date falling five Business Days after the date on which an individual is first proposed for this purpose by this Clause 11.4either the Institutional Seller or the Buyer by the 004600-0228-14943-Active.18252126.10 President for the time being of the Law Society of England and Wales on the application of either the Institutional Seller or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Senior Management Sellers’ Representative and the Institutional Seller is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Sellers but bearing in mind the matters set out in paragraphs 4(b)(i) and 4(b)(ii) above. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made by the Sellers on the one part and the Buyer on the other part in equal shares. The parties shall then implement counsel’s decision as soon as is reasonably practicable. To the extent counsel’s fees are to be borne by the Sellers, such fee shall be funded solely and exclusively out of the Escrow Account without recourse against the consent of any Group CompanySellers.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of the Rhiag Group (LKQ Corp)
Conduct of Third Party Claims. If 2.1 The provisions of this paragraph 2 apply in the matter event that any claim is made or circumstance that may threatened by any third party against the Buyer or the Company, which is reasonably likely to give rise to a Claim other than a Tax Claim is a result of or in connection with a claim by a third party (a “Third "Third-Party Claim”").
2.2 In the event of a Third-Party Claim, the Buyer and/or the Company (as the case may be) thenshall:
11.4.1 2.2.1 as soon as reasonably practicable, and in any event within 10 Business Days of the Purchaser shall, date upon which the Company and/or the Buyer (or any other member of the Buyer's Group) becomes actually aware of the Third-Party Claim give written notice of the Third-Party Claim to the extent reasonably practicable and subject to Applicable LawSellers Representative, consult with specifying in reasonable detail the Seller in relation to the conduct nature of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Third-Party Claim;
11.4.2 no admissions 2.2.2 keep the Sellers’ Representative informed of the progress of, and all material developments in relation to to, the Third Third-Party Claim shall be made by or on behalf and provide the Sellers’ Representative with copies of the Purchaser or any member of the Purchaser’s Group all information and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, correspondence reasonably relating to such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give provided, that no delay or failure on the Purchaser and part of the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made Buyer in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:this paragraph 2.2 will relieve the Warrantors from any obligation under this agreement.
(i) the Purchaser shall, 2.3 The Buyer and the Purchaser Company shall procure that any member of (if so required by the Purchaser’s Group shall:
(a) giveSellers’ Representative), subject to being paid all the Warrantors providing indemnification to the reasonable costs and satisfaction of the Buyer in respect of any costs, expenses, all such information and assistance including access to premises and personnelliabilities or losses incurred in relation thereto, and permit the right to examine and copy or photograph any assets, accounts, documents and records (excluding, Sellers’ Representatives in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf name of the Purchaser or other member of Buyer and/or the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided Company (as appropriate) to take all steps that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not Sellers’ Representatives deem to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability reasonably necessary to defend the Third Party Claim, conduct Claim (subject to consulting the Third Party Claim with a view Buyer prior to minimising taking any material harm such action). The Buyer shall procure that the Sellers’ Representative and his advisers are given reasonable access to the goodwill any relevant documents and reputation information in respect of the Wider Group or Company as are reasonably necessary to enable the Purchaser’s Group;
(c) keep Sellers’ Representative and/or his advisers to promptly and effectively evaluate the Purchaser informed Warrantors’ rights in respect of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of defending the Third Party Claim.
11.4.7 2.4 The covenants Buyer shall not be under any obligation to allow the Sellers’ Representative to institute or conduct the defence of any proceedings unless the Sellers’ Representative provides to the Buyer a legal opinion from a senior counsel of at least ten years standing stating that, on the balance of probabilities, the relevant proceedings regarding the Third party Claim would be likely to be successful. Nothing in this Clause 11.4 may be enforced:
(i) by agreement shall oblige the Buyer or the Company to take any Group action or permit the Sellers’ Representative to take any action in relation to a Third Party Claim that the Buyer reasonably believes will have a material detrimental effect on the Company against or the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000Buyer.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim other than a Tax Claim is a result of or in connection with a claim by a third party (a “Third Party Claim”) then:
11.4.1 9.4.1 the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 9.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 9.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 9.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant G4Si Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant G4Si Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 9.4.5 subject to 11.4.39.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 9.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 9.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) 8) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d9.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 9.4.7 The covenants in this Clause 11.4 9.4 may be enforced:
(i) by any G4Si Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a G4Si Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 9.4.8 The provisions of this Clause 11.4 9.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.49.4) without the consent of any G4Si Group Company.
Appears in 1 contract
Samples: Share Purchase Agreement (Brinks Co)
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim other than a Tax Claim claim against the Seller under this agreement is a result of or in connection with a claim by or liability to a third party (a “Third Party Claim”) and does not arise out of the ordinary course of business of the PMD Group, then:
11.4.1 the Purchaser shall, without prejudice to the extent reasonably practicable and subject to Applicable Lawrights of the insurers of the Purchaser’s Group, consult with the Seller in relation may elect to assume the conduct of any appeal, dispute, compromise or defence of the Third Party Claim and shall take reasonable account of any incidental negotiations on the views of following terms:
(a) the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of indemnify the Purchaser or any other member of the Purchaser’s Group and concerned, against all Losses connected with the Seller’s conduct of such Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayedClaim;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expensesb) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the any other members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest such claim save that neither the Third Party ClaimPurchaser nor any other member of the Purchaser’s Group shall be required to take any action which the Purchaser or other member of the Purchaser’s Group concerned reasonably considers may be unduly onerous or materially prejudicial to it or to its business;
11.4.4 (c) the Seller Purchaser shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to or the Purchaser and shall procure that any other members of the relevant Purchaser’s Group Company shall not admit, compromise, dispose of or settle such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(iid) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to request by the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member other members of the Purchaser’s Group shall:
(a) give, subject to being paid take all reasonable costs and expenses, all such information and assistance including access steps to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents procure that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act is provided on behalf of the Purchaser or reasonable notice with all material correspondence and documentation and other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters information relating to the Third Party Claim and shall promptly forward or procure to be forwarded as the Seller may reasonably request subject to the Seller agreeing in such form as the Purchaser copies of may reasonably require to keep all such correspondence and other written communications information confidential and to use it only for the purpose of dealing with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the relevant Third Party Claim;
(d) not make any admission of liability, settlement ; In all other cases or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of where the Seller shall (without prejudice does not elect to Clause 10) not exceed assume the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any , the Purchaser shall procure that the relevant PMD Group Company against consult with the Seller; and
(ii) by Seller in relation to the conduct of any member appeal, dispute, compromise or defence of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller Party Claim and the Purchaser (shall, and shall procure that the relevant PMD Group Company shall, keep the Seller informed of the progress of the Third Party Claim. The Purchaser may also release shall, and shall procure that the relevant PMD Group Company shall, before making any admission of liability, agreement, settlement or compromise with any third party in whole relation to any such claim or in part any liability in respect adjudication first take into account the reasonable interests of rights or claims contemplated by the Seller (to the extent this Clause 11.4) without does not unreasonably prejudice the consent interests of any the PMD Group Company). Nothing in this paragraph 5 shall affect the conduct of claims under clause 13.1(c) or under the schedule headed “Tax Covenant”.
Appears in 1 contract
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim other than a Tax Claim is arises as a result of of, or in connection with with, a claim by liability or alleged liability to a third party (a “Third Party Claim”), then (subject to the provisions of the Tax Deed in relation to any matter which is the subject of a claim under it):
(a) then:
11.4.1 the Purchaser shall, shall give notice of the relevant facts to the extent Seller as soon as reasonably practicable and subject in any event within two months of becoming aware of the circumstances or the receipt of the document as appropriate;
(b) the Purchaser shall and shall procure that the relevant Company shall take such action as the Seller may reasonably request by notice in writing given to Applicable Lawthe Purchaser to avoid, consult dispute, resist, appeal or compromise or contest any Third Party Claim and in such case, the Purchaser shall and shall procure that the relevant Company shall make available to the Seller such access to personnel and information (including copies of information) as may be reasonably requested by the Seller for avoiding, resisting, disputing, appealing or compromising or contesting any Third Party Claim and the Seller shall indemnify the Purchaser and keep the Purchaser indemnified on demand against all reasonable costs incurred in complying with such requests of the Purchaser under this subparagraph; and
(c) if the Seller does not request the Purchaser or the relevant Company to take any action the Purchaser shall procure that the relevant Company consults with the Seller in relation to the conduct of any appeal, dispute, compromise or defence of the Third Party Claim; and the Purchaser shall, and shall procure that the relevant Company shall, keep the Seller promptly informed of the progress of the Third Party Claim and shall take reasonable account of the views of provide the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall with copies of all relevant documents and such other information as may be made reasonably requested by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claimcost.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Share Purchase Agreement (Esterline Technologies Corp)
Conduct of Third Party Claims. If 10.1 The provisions of this paragraph 10 shall apply in the matter event that any Claim is made or circumstance that threatened by any third party against the Buyer, the Company or any Subsidiary, which may give rise to a Claim other than a Tax Claim is a result of or in connection with a claim by a third party (a “Third Party Claim”) then).
10.2 In the event of a Third Party Claim, the Buyer shall:
11.4.1 the Purchaser shall(a) as soon as reasonably practicable, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct give written notice of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions Sellers, specifying in relation sufficient detail for the Sellers to fully understand the Third Party Claim shall be made by or on behalf nature of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(iib) shall give keep the Purchaser Sellers reasonably informed of the progress of, and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3all material developments in relation to, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and provide the Sellers with copies of all material information and correspondence relating to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of claim; provided that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, Buyer may require the Sellers to enter into confidentiality undertakings in favour of the Buyer in such form and substance as the Purchaser Buyer may reasonably specify as a condition to the Buyer complying with the provision of this paragraph and (ii) the Sellers shall not be entitled to any documents or any information which would otherwise be subject to legal professional privilege;
(c) give (and procure that any each member of the PurchaserBuyer's Group shall give) the Sellers or their professional advisers access at reasonable times (and on reasonable prior notice) to such information accounts, documents or records within its control with respect to such Third Party Claim, for the purposes of enabling the Sellers and their advisers to assess the Third Party Claim, and enabling the Sellers to exercise their rights under this paragraph 10.2 and paragraph 10.3; provided that (i) the Buyer may require the Sellers to enter into confidentiality undertakings in favour of the Buyer in such form and substance as the Buyer may reasonably specify as a condition to the Buyer complying with the provision of this paragraph and (ii) the Sellers shall not be entitled to any documents or any information which would otherwise be subject to legal professional privilege.
10.3 Subject to the Sellers indemnifying and securing the Buyer in accordance with paragraph 10.4, and save where (i) the Buyer reasonably believes in good faith that the goodwill, reputation or business of the Buyer, Buyer's Group, or the Company or any of the Subsidiaries shall be adversely prejudiced thereby, or (ii) such action would prejudice any insurance cover where any Claim could be settled by insurance, or (iii) such action would conflict with the Buyer’s Group duties under any law or regulatory requirement, the Buyer shall:
(a) give, subject to being paid all reasonable costs take (and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in shall procure that each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Company Group concerned but in accordance with shall take) such action as the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved Sellers may reasonably request in writing by to avoid, dispute, resist, mitigate, compromise or defend the Purchaser (such approval not Third Party Claim and to be unreasonably withheld, conditioned or delayed); andappeal against any judgment given in respect of it;
(b) not (and shall procure that no other member of the Buyer's Group shall) agree any compromise or settlement, or make any admission of liability, agreement liability or compromise payment in relation to that a Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult consultation with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;Sellers; and
(c) keep promptly when requested by the Purchaser informed Sellers in writing, delegate the control of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by any legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise proceedings in respect of the Third Party Claim without to the written consent Sellers; provided the Buyer may not undertake such delegation if (i) the Buyer reasonably believes in good faith that the goodwill, reputation or business of the PurchaserBuyer, Buyer's Group, or the Company or any of the Subsidiaries shall be adversely prejudiced by such delegation, (ii) such delegation would prejudice any insurance cover, or (iii) such delegation would conflict with the Buyer’s duties under any law or regulatory requirement. The purpose of delegation as aforesaid shall be met if the Buyer shall retain such firm of solicitors as is selected by the Sellers (and agreed to by the Buyer, whose consent shall not to be unreasonably withheld, conditioned withheld or delayed. If the Purchaser or member ) to proceed on behalf of the Purchaser’s Group fails to consent to a settlement or compromiseBuyer, the maximum liability Company or the relevant Subsidiary (as the case may be) in relation to the Proceedings in accordance with the instructions of the Seller Sellers and the Buyer shall (without prejudice to Clause 10) not exceed give such information and assistance as the full amount Sellers or the appointed solicitors may reasonably require in connection with the conduct of the proposed settlement or compromise Proceedings.
10.4 The Sellers shall indemnify and secure the Purchaser or member Buyer within 15 Business Days of any demand by the Buyer (accompanied by proof of the Purchaser’s Group shall be liable for any damages awarded in excess incurrence of the proposed settlement amount) to its reasonable satisfaction in respect of all costs, charges and expenses that are reasonably and properly incurred by the Buyer (or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or any other member of the Purchaser’s Group concerned against all reasonable costs Buyer's Group) as a consequence of any actions taken at the request of the Sellers in accordance with paragraph 10.2 or paragraph 10.3. The obligations of the Buyer under paragraph 10.2 or paragraph 10.3 shall automatically cease if at any time the Sellers fail to pay any amount dues under this paragraph 10.4 within 15 Business Days of receipt of a written reminder from the Buyer informing the Sellers that it has failed to pay an amount due under this paragraph 10.4, and expenses (including legal and professional costs and expenses) demanding such payment be made.
10.5 The Sellers shall have no liability in respect of a Claim to the extent that may be incurred the liability pursuant to the relevant Claim arises or is increased as a result of the Seller assuming conduct of failure by the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
Buyer (i) by or any Group Company against the Seller; and
(ii) by any other member of the Seller’s Group against Buyer's Group) to act in accordance with any reasonable request or direction given by the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise Sellers in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.accordance with paragraph 10.3
Appears in 1 contract
Samples: Share Purchase Agreement (RRSat Global Communications Network Ltd.)
Conduct of Third Party Claims. If the (a) Where a matter or circumstance arises that may could give rise to a Claim other than a Tax Claim is a result of or in connection with a claim by a third party (a “Third Party Warranty Claim”) then, the Buyer shall:
11.4.1 the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, (i) consult with the Senior Management Sellers’ Representative and the Institutional Seller as soon as reasonably practicable with regard to any actual or proposed developments relating to the matter in question and provide the Sellers with copies of all correspondence and documents in relation to that matter;
(ii) where practicable, not admit liability in respect of or settle or compromise the conduct matter in question (or offer to do so) without prior consultation with the Senior Management Sellers’ Representative and the Institutional Seller;
(iii) consult with the Senior Management Sellers’ Representative and the Institutional Seller as to any ways in which the matter might be avoided, disputed, resisted, mitigated, settled, compromised, defended or appealed; and
(iv) take such action, at the written request of the Third Party Claim and shall take reasonable account of Sellers, as the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group Senior Management Sellers and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Institutional Seller may reasonably request require, to avoid, dispute, deny, defend, resist, appealmitigate, compromise settle, compromise, defend or contest appeal the Third Party Claimthird party claim, provided that;
11.4.4 (b) the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expensesprovisions of paragraph 4 shall not apply:
(i) make available to where the Purchaser and subject matter of the relevant Warranty Claim involves a claim by or against a material customer or supplier of the business of the Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party ClaimCompanies; and004600-0228-14943-Active.18252126.10
(ii) shall give to any matters which would require the Purchaser Buyer or any Group Company to breach a contractual or legal obligation existing at the date hereof or waive any legal privilege; or
(iii) if the relevant actions or steps required by the Senior Management Sellers and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given Institutional Seller would conflict with the Buyer's obligations under the terms of the Insurance Policy. Subject to the Seller;
11.4.5 subject Buyer's obligations under the terms of the Insurance Policy, if there is any dispute between the Sellers and the Buyer as to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made whether liability in respect of any third party claim should be admitted or whether that Third Party Claim claim should be settled or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shallcompromised, liability shall not be admitted, and the Purchaser that claim shall procure that any member of the Purchaser’s Group shall:
(a) givenot be settled or comprised, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but than in accordance with the Seller’s instructions, provided that provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the appointment Senior Management Sellers’ Representative and the Institutional Seller and the Buyer or in default of such adviser agreement on or advisers before the date falling five Business Days after the date on which an individual is first proposed for this purpose by either the Institutional Seller or the Buyer by the President for the time being of the Law Society of England and Wales on the application of either the Institutional Seller or the Buyer. Any individual to whom a dispute is so referred shall have been approved be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Purchaser (such approval not Buyer and by the Senior Management Sellers’ Representative and the Institutional Seller is most likely to be unreasonably withheldresult in the third party claim being agreed, conditioned settled or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without compromised at the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation least cost to the Third Party Claim;
(b) without prejudice to its ability to defend Sellers but bearing in mind the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d)paragraphs 4(b)(i) and 4(b)(ii) above. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Sellers for all purposes. Counsel's fees and expenses shall be borne by the Sellers and the Buyer as counsel may determine in his sole discretion or, if no such determination is made by the Purchaser or Sellers on the one part and the Buyer on the other member part in equal shares. The parties shall then implement counsel’s decision as soon as is reasonably practicable. To the extent counsel’s fees are to be borne by the Sellers, such fee shall be funded solely and exclusively out of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company Escrow Account without recourse against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000Sellers.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of the Rhiag Group (LKQ Corp)
Conduct of Third Party Claims. 8.1 If the matter any fact, matter, event or circumstance that may give rise to a Claim (other than a claim under the Tax Claim is Covenant in which case the provisions of Schedule 4 shall apply) arises following the Closing Date as a result of or in connection with a claim by a third party (a “Third Party Claim”) then:
11.4.1 (a) the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct of the Third Party Claim and Buyer shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 ensure that no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the PurchaserBuyer’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the prior written consent of the Seller, such consent relevant Management Warrantor (not to be unreasonably withheld or delayed);
11.4.3 (b) subject to the Seller indemnifying the Purchaser or member terms of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred therebyW&I Policy, the Purchaser shall, or the Purchaser Buyer shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may relevant Management Warrantor shall reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
Claim (i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising including making counterclaims or appealing the Third Party Claimother claims against third parties); and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(ic) the Purchaser shall, and the Purchaser Buyer shall procure that any each relevant member of the PurchaserBuyer’s Group shall:
(a) shall give, on reasonable notice from the relevant Management Warrantor and subject to it being paid all reasonable its reasonably incurred costs and expenses, all such information and assistance including reasonable access (during business hours) to any relevant premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excludingrecords, in each case, information or documents which to the extent the same are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege)not privileged, as the Seller relevant Management Warrantor may reasonably request, including instructing such professional or legal advisers as request for the Seller may nominate to act on behalf purposes of investigating the merits of the Purchaser or other Third Party Claim; provided that the relevant Management Warrantor shall exercise its rights hereunder to mitigate, as far as reasonably practicable, any disruption to the business of the relevant member(s) of the Buyer’s Group, provided that, nothing in this paragraph 8 shall require the Buyer, any member of the Purchaser’s Buyer's Group concerned but in accordance with or any Target Group Company to take or refrain from taking any action which it reasonable considers would materially and adversely affect the Seller’s instructions, provided that the appointment of such adviser goodwill or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval bona fide commercial interests of the Seller (such approval not to be unreasonably withheldBuyer, conditioned any member of the Buyer's Group or delayed);any Target Group Company.
(ii) the Seller shall8.2 The Buyer shall as soon as reasonably practicable:
(a) consult with inform the Purchaser and take reasonable account relevant Management Warrantor in writing upon its becoming aware of the views of the Purchaser before taking any action in relation to the a Third Party Claim;
(b) without prejudice to its ability to defend thereafter keep the Third Party Claim, conduct the Third Party Claim with a view to minimising any relevant Management Warrantors informed of all material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;developments in relation thereto; and
(c) keep provide all such material information and documentation (no matter how it is recorded or stored) as the Purchaser informed of all relevant matters relating to the Third Party Claim and Management Warrantors shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded reasonably request in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claimconnection therewith.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Warranty Deed (Broadridge Financial Solutions, Inc.)
Conduct of Third Party Claims. 11.2.1 If the matter or circumstance that may give rise to a Claim other than against the Claimed Party under this Agreement (including a Claim for breach of the Tax Warranties or a Claim under the Tax Indemnity) is a result of or in connection with a claim Claim by or liability to a third party (a “Third Party Claim”) then:
11.4.1 (i) The Claiming Party shall use its reasonable endeavours to ensure that the Purchaser shall, Claimed Party is given all reasonable facilities to investigate the relevant Claim or liability to a third party;
(ii) to the extent reasonably practicable and subject to Applicable Lawapplicable, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim such third party claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group Claiming Party and the Third Party Claim shall not be compromised, disposed of or settled without prior consultation with the written consent of the Seller, such consent not to be unreasonably withheld or delayedClaimed Party;
11.4.3 (iii) subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs Claiming Party and expenses (including its Affiliates being entitled to employ its own legal and professional costs and expenses) that may be incurred therebyadvisers, the Purchaser shall, or the Purchaser Claiming Party shall procure take any action that the members of the Purchaser’s Group shall, take such action as the Seller may Claimed Party reasonably request requests to avoid, resist, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claimdefend that relevant Claim or liability to a third party;
11.4.4 (iv) it is agreed that the Seller shallClaiming Party shall have the final decision in relation to any settlement, subject in each case to being paid all reasonable out-of-pocket costs and expenses:compromise or conduct of any action proceeding or Claim.
(i) make available 11.2.2 The rights of the Claimed Party under this clause shall only apply if it gives notice to the Purchaser and Claiming Party in writing of its intention to exercise its rights within 10 Business Days of the Claiming Party giving notice of the relevant Group Company such persons and all such information as Claim or liability to a third party. If the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Claimed Party Claim; and
(ii) shall does not give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose notice during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3that period, the Seller Claiming Party shall be entitled at its own expense and in its absolute discretiondiscretion to settle, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreementor resist any action, expert determination proceedings or non-appealable decision claim out of a court or tribunal of competent jurisdiction is made in respect of that Third Party which the relevant Claim or that Third Party Claim is otherwise finally disposed of:liability to a third party may arise.
11.2.3 Neither WireCo nor any of its Affiliates (iincluding the COS Group Companies after Closing) the Purchaser shall, and the Purchaser shall procure that be required to take any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy action or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before refrain from taking any action pursuant to this clause if the action or omission requested would, in relation the reasonable opinion of the WireCo, be materially prejudicial to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation business of the Wider COS Group Companies, WireCo or the Purchaser’s Group;
(c) keep the Purchaser informed any of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claimtheir respective Affiliates.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If any third person shall notify the Purchaser or the Company with respect to any matter or circumstance that may give rise to a Claim other than a Tax Claim is a result of or in connection with a claim by a third party (a “Third Party Claim”) then:
11.4.1 that may give rise to a claim for breach of a Seller’s Warranty, then the Purchaser shall, to shall promptly (and in any event within ten (10) Business Days after receiving notice of the extent reasonably practicable and subject to Applicable Law, consult with Third Party Claim) notify the Seller thereof in relation writing. The Seller will have the right to assume and thereafter conduct the conduct defence of the Third Party Claim and shall take with counsel of its choice provided that, in the Purchaser’s reasonable account of judgment, an unfavourable outcome could not reasonably be expected to have a Material Adverse Effect or could not reasonably be expected to materially prejudice the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by business, reputation or on behalf standing of the Purchaser or any member of the Company or their relationships with customers, suppliers and other third parties that are material to the Purchaser’s Group or the Company’s businesses, and provided that the Seller shall first agree to indemnify the Purchaser and the Company against all documented Losses which they may reasonably incur in connection with such Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take in taking any such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest require under this paragraph. Unless and until the Seller assumes the defence of the Third Party Claim;
11.4.4 the Seller shallClaim as provided in this Clause 10.3, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and and/or the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing defend against the Third Party ClaimClaim in any manner they reasonably may deem appropriate; and
provided, however, that the party or parties conducting the defence of the Third Party Claim will not consent (ii) shall give or, in the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to case of the Purchaser, allow the Company to assume conduct consent) to the entry of any Third Party Claim and to have the conduct of judgment or enter into any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice settlement with respect to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval consent of the Seller other party (such approval not to be unreasonably withheldwithheld unreasonably); provided, conditioned or delayed);
(ii) however, that the Seller shall:
(a) consult with may consent to the entry of any judgment or enter into any settlement without the Purchaser’s consent if the judgment or proposed settlement involves only the payment of money damages for which the Seller is liable hereunder and does not involve an admission of guilt by or impose an injunction or other equitable relief upon the Purchaser and take reasonable account of or the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Company. The relevant party that defends such Third Party Claim with a view to minimising any material harm shall consult with, to the goodwill extent practicable, and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser other party informed of all relevant matters relating with respect to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claimdefence thereof.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Business Quota Sale and Purchase Agreement (Hungarian Telephone & Cable Corp)
Conduct of Third Party Claims. 13.5.1 If the matter any fact, matter, event or circumstance that may give rise to a Claim claim against any member of the Seller’s Group under this Agreement or any other Transaction Document (other than a any Tax Claim Deed, to which the provisions of that Tax Deed shall apply, and other than the Transitional Services Agreement and either Schlumberger Master Services Agreement) or any Transfer Document is a result of or in connection with a claim by a third party (a “Third Party Claim”) then:
11.4.1 then the Purchaser shallSeller or other member of the Seller’s Group shall be entitled at its own cost and expense and in its absolute discretion, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct or other member of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of Seller’s Group indemnifying the Purchaser or any other member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, by notice in writing to the Purchaser, to elect that the Purchaser shall, or the Purchaser shall procure that the any other members of the Purchaser’s Group shall, to the extent legally permissible, take such action as the Seller or other member of the Seller’s Group may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;.
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant 13.5.2 Without prejudice to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of13.5.1:
(i) the Purchaser shall, and the Purchaser or shall procure that any other members of the Purchaser’s Group shall, to the extent legally permissible, consult with the Seller or other member of the Seller’s Group in relation to the conduct of any Third Party Claim, shall take reasonable account of the views of the Seller or other member of the Seller’s Group before taking any action in relation to any Third Party Claim and provide all such information in relation to such Third Party Claim as the Seller or other member of the Seller’s Group may reasonably request; and
(ii) no admissions in relation to any Third Party Claim shall be made by or on behalf of the Purchaser or any other member of the Purchaser’s Group shall:
(a) giveand no Third Party Claim shall be compromised, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and disposed of or settled without the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as written consent of the Seller may reasonably requestor other member of the Seller’s Group (such consent not to be unreasonably withheld or delayed).
13.5.3 If, including instructing such professional due to the operation of any applicable laws or legal advisers as regulations, the Seller may nominate to act on behalf or other member of the Seller’s Group cannot exercise its rights or the Purchaser or other member of the Purchaser’s Group concerned but cannot fulfil its obligations as provided in accordance with the Seller’s instructionsClause 13.5.1 and Clause 13.5.2, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to shall procure that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or each member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between co-operate with the Seller and shall use its reasonable endeavours to achieve the Purchaser (same result as if Clause 13.5.1 and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company13.5.2, inclusive, had been able to be fully implemented.
Appears in 1 contract
Samples: Share and Business Sale Agreement (Harris Corp /De/)
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim claim against a Seller under this Agreement or any relevant Local Transfer Document for breach of any Seller’s Warranty (other than a Tax Claim Warranty) is a result of or in connection with a claim by a third party (a “Third Party Claim”) then:
11.4.1 the Purchaser shall, to the extent shall as soon as reasonably practicable give written notice thereof to that Seller and subject to Applicable Law, thereafter shall provide that Seller with periodic updates upon reasonable request and shall consult with the that Seller so far as reasonably practicable in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the that Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be admitted, compromised, disposed of or settled without the written consent of the Seller, that Seller (such consent not to be unreasonably withheld or delayed;); and
11.4.3 subject to the that Seller indemnifying the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the any other members of the Purchaser’s Group shall, take such action as the that Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 , provided that this Clause 11.4.3 shall not apply where the Seller shall, subject claim by the third party relates to matters or circumstances referred to in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising paragraph 4 or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct paragraph 9 of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, Schedule 13 and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and then have the right to examine and copy or photograph any assets, accounts, documents and records conduct the claim at its discretion (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilegeClauses 11.4.1 and 11.4.2), as provided that failure to give notice in accordance with Clause 11.4.1 shall not affect the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf rights of the Purchaser or other member to make a relevant claim under this Agreement for breach of the Purchaser’s Group concerned but in accordance with the any Seller’s instructionsWarranty, provided except that the appointment failure shall be taken into account in determining the liability of that Seller for such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation claim to the Third Party Claim;
(b) without prejudice to its ability to defend extent that Seller establishes that the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement it is increased, or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnifyis not reduced, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claimthat failure.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Contribution Agreement (Novartis Ag)
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim other than a Tax Claim is claim as a result of or in connection with a claim by a third party in respect of which any Relevant Seller is obliged to indemnify the Purchaser (or any member of the Purchaser’s Group) pursuant to Clause 9.5 of this Agreement (a “Third Party Claim”) then:
11.4.1 11.5.1 the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, shall consult with the Relevant Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Relevant Seller before taking any action in relation to the Third Party Claim;; and
11.4.2 11.5.2 only in respect of a Third Party Claim relating to Clause 9.5.1(i):
(a) no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any other member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, Relevant Sellers (such consent not to be unreasonably withheld or delayed) to the extent that it would result in liability for any Relevant Seller;
11.4.3 (b) subject to the Relevant Seller indemnifying the Purchaser or other member of the Purchaser’s Group concerned against all reasonable reasonably and properly incurred costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the any other members of the Purchaser’s Group shall, take such action as the Relevant Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(iic) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Relevant Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim (including making counterclaims or other claims against third parties) in the name of and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with and to have the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claimany related proceedings, negotiations or appeals.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If 11.2.1 Subject to Clause 11.2.2, if the matter or circumstance that may give rise would reasonably be expected to result in a Claim other than a (save for any Tax Claim Claim) is a result of or in connection with a claim by or liability to a third party (a “Third Party Claim”) then:
11.4.1 (i) the Purchaser shall, Company shall as soon as reasonably practicable give written notice to YNV and Sberbank stating reasonable details (to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation known to the conduct Company at the relevant time) of the nature of the Third Party Claim and shall take reasonable account Claim, the identity of the views third-party claimant (to the extent known to the Company at the relevant time), copies of any formal demand or complaint, the circumstances giving rise to it, the specific nature of the Seller before taking breach to which such Third Party Claim is related, and (if practicable) a bona fide estimate of any action in relation alleged loss;
(ii) Sberbank or the Sberbank Nominee (as applicable) shall allow YNV and its Representatives, at YNV’s cost and expense, to investigate the Third Party ClaimClaim (including whether and to what extent any amount is or may be payable in respect thereof);
11.4.2 no admissions (iii) the Company and Sberbank or the Sberbank Nominee (as applicable) shall make available to YNV and its Representatives all such information they may reasonably require, subject to YNV giving customary undertakings as to confidentiality as the Company, Sberbank or the Sberbank Nominee (as applicable) may reasonably require;
(iv) Sberbank or the Sberbank Nominee (as applicable) shall take such action as YNV may reasonably request to avoid, dispute, resist, appeal, compromise, defend or mitigate any such Third Party Claim subject to being indemnified in full by YNV against any costs, expenses or losses incurred in so doing (subject to the limitations on the liability of YNV set forth in Clause 10.4); and
(v) neither Sberbank nor the Sberbank Nominee shall make any admission of or settle or compromise any liability which Sberbank or the Sberbank Nominee (as applicable) may have in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the prior written consent of YNV, which shall be deemed to have been provided if (x) YNV has not responded to Sberbank or the SellerSberbank Nominee (as applicable) within ** following its written request or (y) failed to provide its consent without granting indemnification (in form and substance reasonably acceptable to Sberbank) against any costs, expenses or losses which Sberbank or the Sberbank Nominee (as applicable) (each acting reasonably) may suffer as a result of not being able to make any such consent not to be unreasonably withheld admission of or delayed;settle or compromise any such liability.
11.4.3 subject to 11.2.2 If the Seller indemnifying the Purchaser matter or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) circumstance that may be incurred thereby, give rise to a Claim is a result of or in connection with a claim by or liability to a Governmental Authority (which is not the Purchaser shall, FAS or any Tax Authority) then Sberbank or the Purchaser Sberbank Nominee (as applicable) shall procure that the members of the Purchaser’s Group shallbe entitled, in its absolute discretion, to take such action as the Seller may reasonably request it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
such claim or liability (iincluding making counterclaims or other claims against such Governmental Authority) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3indemnifying YNV in full against any costs, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations expenses or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
losses incurred (iacting reasonably) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of Sberbank or the Seller Sberbank Nominee (as applicable) assuming conduct of the Third Party Claimsuch claim and shall, so far as practicable, consult with YNV before taking any such action.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Subscription Agreement (Yandex N.V.)
Conduct of Third Party Claims. If the matter or circumstance that may give rise to a Claim other than a Tax Claim claim against the Sellers under this Agreement or against SCPLC under the SCPLC Guarantee in connection with the Guaranteed Leases is a result of or in connection with a claim by or liability to a third party (a “Third Party Claim”) then:
11.4.1 the Purchaser shall, subject to Clause 11.5.5 and without prejudice to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct rights of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member insurers of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;Group:
11.4.3 11.5.1 subject to the Seller Sellers indemnifying the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred therebyLosses, the Purchaser shall, or the Purchaser shall procure that the any other members of the Purchaser’s Group shall, take such action as the Seller Sellers may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claimsuch claim or liability;
11.4.4 11.5.2 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller Sellers shall be entitled at its their own expense and in its their absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and take such action as they shall deem necessary to have the conduct of any related proceedingsavoid, negotiations dispute, deny, defend, resist, appeal, compromise or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until contest such time as any final compromise, agreement, expert determination claim or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
liability (i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, without limitation, making counterclaims or other claims against third parties) in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act name of and on behalf of the Purchaser or other member of the Purchaser’s Group concerned but and to have the conduct of any related proceedings, negotiations or appeals and in accordance with the Seller’s instructionsso doing shall, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheldso far as practicable, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claimsuch action;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), 11.5.3 the Purchaser or other member of the Purchaser’s Group concerned against may not admit, compromise, dispose of or settle such claim or liability without the written consent of SCPLC on behalf of the Sellers; and
11.5.4 if the Sellers make any request pursuant to Clause 11.5.1 or the Purchaser wishes to take any action to settle a claim or liability in accordance with the provisions of Clause 11.5.5, the Purchaser shall, and the Purchaser shall procure that any other members of the Purchaser’s Group shall, take all reasonable costs steps to procure that the Sellers are provided on reasonable notice with all material correspondence and expenses (including legal documentation relating to the claim as the Sellers may reasonably request. The Sellers agree to keep all such correspondence and professional costs information confidential and expenses) to use it only for the purpose of dealing with the relevant claim.
11.5.5 If the matter or circumstance that may be incurred as give rise to a claim against the Sellers under this Agreement is a result of or in connection with a claim by or liability to a third party the Seller assuming conduct subject matter of which is fundamental to the business of the Third Party Claim.
11.4.7 The covenants Group and which claim or liability would affect the goodwill of the Hotels in a material adverse way then, without prejudice to the rights of the insurers of the Purchaser’s Group, the Purchaser shall be entitled, at its own expense and subject to it complying with the provisions of this Clause 11.4 may paragraph 11.5.5, to settle such claim or liability with the Sellers’ prior written consent (which consent shall not be enforcedunreasonably withheld or delayed) provided that:
(i) by the Purchaser shall notify the Sellers of any Group Company intention to settle such claim or liability and in so doing give the Sellers a reasonable time (being no less than 10 Business Days) to respond to such notification, and shall consult with the Sellers, in each case before taking any action, to settle such claim or liability;
(ii) if the Sellers unreasonably withhold such consent the Purchaser shall be entitled, in its absolute discretion, to settle such claim or liability without prejudice to its ability to claim against the SellerSellers under this Agreement for any Losses it has suffered in respect of such claim or liability; and
(iiiii) if the Sellers reasonably withhold such consent and such claim or liability is settled by any member or on behalf of the Seller’s Group against Purchaser, the Purchaser or a Group Company, Sellers shall not be liable under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability Agreement in respect of rights such claim or claims contemplated by this Clause 11.4) without the consent of any Group Companyliability.
Appears in 1 contract
Samples: Share Purchase Agreement (Intercontinental Hotels Group PLC /New/)
Conduct of Third Party Claims. If 10.1 The Buyer shall inform the matter Sellers of any claim by any third party (Third Party Claim) which comes to the notice of the Buyer after the date of this agreement whereby it appears that the Sellers are likely to become liable under any Claim as soon as reasonably possible after such Third Party Claim comes to the notice of the Buyer (but such notice shall not be a condition precedent to the liability of the Sellers). For this purpose, the Sellers undertake to notify the Buyer of any Third Party Claim which gives rise or circumstance that may is in the reasonable opinion of the Sellers likely to give rise to a Claim other than a Tax Claim is a result as soon as reasonably practicable upon becoming aware of such matter, fact or circumstance.
10.2 Subject to the Buyer and each member of the Buyer’s Group being indemnified and secured to its satisfaction in connection accordance with a claim by a third party (a “paragraph 10.3 of this schedule 5 the Buyer shall, and shall procure that the Company shall:
10.2.1 take such action as the Sellers may reasonably request in writing to dispute, resist, mitigate, compromise or defend that Third Party Claim”) then:; and
11.4.1 10.2.2 keep the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct Sellers informed of the progress of that Third Party Claim including by providing relevant information (and shall take the Sellers will keep the same confidential save in respect of reasonable account disclosure to professional advisers); and
10.2.3 not make any admission of the views liability nor any settlement or compromise in respect of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the such Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, Sellers (and/or any of them) (such consent not to be unreasonably withheld or delayed;
11.4.3 subject ); Provided always that the Sellers shall not be entitled to require the Buyer or the Company to delegate the conduct of such action to the Seller indemnifying Sellers or any agent or professional advisor of the Purchaser or Sellers.
10.3 The Sellers shall indemnify and secure the Buyer and each member of the PurchaserBuyer’s Group concerned against all to their reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made satisfaction in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) all costs, charges, liabilities and expenses incurred by the Purchaser shall, Buyer and the Purchaser shall procure that any each member of the PurchaserBuyer’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and as a consequence of any actions taken at the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf request of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not Sellers pursuant to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions paragraph 10.2.1 of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Companyschedule 5.
Appears in 1 contract
Conduct of Third Party Claims. 8.1 If the matter or circumstance that may give rise to a Warranty Claim other than a Tax Claim is arises as a result of of, or in connection with with, a claim by liability or alleged liability of the Company to a third party (a “Third Party Claim”) then:
11.4.1 the Purchaser shall), then (without prejudice to the extent reasonably practicable and subject to Applicable Law, consult with provisions of the Seller Tax Deed in relation to any matter which is the conduct subject of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromiseda claim under it), disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that the Third Party Claim or that the Third Party Claim is otherwise finally disposed of:
(a) each Seller shall make available to the Purchaser and the Company all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim and shall:
(i) co-operate in the preparation, review and signing of any witness statements and exhibits thereto which the Purchaser shallmay reasonably request; and
(ii) if the Purchaser so requests, attend any relevant proceedings as a witness to give evidence and prepare appropriately for such attendance;
(b) the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) giveCompany, subject to being paid all reasonable costs and expensesthe extent reasonably practicable, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance consults with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action Sellers in relation to the Third Party Claim;
(b) without prejudice to its ability to defend conduct of any dispute, defence, compromise or appeal of the Third Party Claim, conduct although, for the Third Party Claim with a view to minimising any material harm to avoidance of doubt, the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed final decision in respect of all relevant matters relating to shall rest with the Company save that a Third Party Claim and shall promptly forward not be settled or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim comprised without the written consent of the PurchaserSellers, such consent not to be unreasonably withheld, conditioned withheld or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(ec) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of shall, and shall procure that the Purchaser’s Group concerned against all Company shall, provide the Sellers with reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred information as a result of to the Seller assuming conduct progress of the Third Party ClaimClaim on request.
11.4.7 8.2 The covenants in this Clause 11.4 paragraph 8 may with the prior written consent of the Purchaser be enforced:
(i) enforced by any Group the Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, Sellers under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 . The provisions of this Clause 11.4 paragraph 8 may be varied or terminated by agreement between the Seller Sellers and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) paragraph 8) without the consent of any Group the Company.
Appears in 1 contract
Samples: Share Purchase Agreement (Inyx Inc)
Conduct of Third Party Claims. If the matter or circumstance that may is reasonably likely to give rise to a Claim claim against a Seller (excluding the Tax Covenant) for breach of any Warranty (other than a Tax Claim Warranty) is a result of or in connection with a claim by a third party (a “"Third Party Claim”") then:
11.4.1 the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of i. the Purchaser or any other Seller shall as soon as reasonably practicable give written notice thereof to that relevant Seller (with copy to the other Seller);
ii. the Sellers shall procure that the Purchaser shall provide such reasonable information and access during Working Hours to personnel, premises, books, records and documents (including in electronic form but excluding access to legally privileged information or which would result in a breach of Applicable Law) to the relevant Seller or other member of the Purchaser’s relevant Seller's Retained Group and their professional advisors as the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayedrelevant Seller may reasonably request;
11.4.3 iii. subject to the relevant Seller indemnifying and holding harmless the Purchaser or member of (or, as the Purchaser’s Group concerned case may be, the other Seller) against all reasonable costs and expenses (including legal and professional costs and expenses) that may be suffered or incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and to take the sole conduct of such claims, actions or demands as the relevant Seller may deem appropriate in its absolute discretion, by notice in writing to the name of the Purchaser, provided that the relevant Seller has consulted with the Purchaser prior to assume conduct of any Third Party Claim doing so, and in that connection shall give or cause to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice be given to the Purchaser pursuant to Clause 11.4.5 relevant Seller all such assistance as it may reasonably require in avoiding, disputing, resisting, settling, compromising, defending or appealing any such claim, action or demand and until shall instruct such time solicitors or other professional advisers as any final compromise, agreement, expert determination that the relevant Seller or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any such other member of the Purchaser’s relevant Seller's Retained Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser Purchaser, as appropriate, but to act in accordance with the instructions of the relevant Seller or other member of the Purchaser’s Group concerned but in accordance with the relevant Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s 's Retained Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Conduct of Third Party Claims. If 6.1 In the matter event that any negotiations with third parties or circumstance that may give rise to a Claim other than a Tax Claim is a result of or litigation in connection with a claim any claim, action or demand by a third party gives rise to an obligation on the Buyer to give notice under paragraph 2 the provisions of paragraphs 6.2 to 6.4 shall apply.
6.2 The Buyer shall at the Seller’s written request and cost (a “Third Party Claim”and the Seller hereby agrees to indemnify the Buyer and any member of its Group against all costs incurred by the Buyer or any member of its Group resulting from the Buyer complying with its obligations under this paragraph, including any directly attributable increase in the premiums payable on any insurance renewal), take such action and initiate such proceedings, and give such information and assistance, as the Seller may from time to time reasonably request to dispute, resist, appeal, compromise, defend, remedy or mitigate the matter in question or enforce against any person (other than the Seller) then:
11.4.1 the Purchaser shall, to rights of the extent reasonably practicable and subject to Applicable Law, consult with Buyer or the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of matter in question (save that a request from the Seller before taking shall be deemed to be unreasonable where there is a demonstrable risk that the action requested would materially and adversely affect the Business).
6.3 Whether or not the Seller makes any action request under paragraph 6.1 the Buyer shall:
6.3.1 consult with the Seller as soon as reasonably practicable with regard to any actual or proposed developments relating to the matter in question and provide the Seller with copies of all correspondence and documents in relation to that matter which the Third Party Claim;Seller shall reasonably require; and
11.4.2 no admissions 6.3.2 not admit liability in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed respect of or settled settle or compromise the matter in question without the prior written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
(b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, delayed save where obtaining such consent not to be unreasonably withheld, conditioned or delayed. would materially and adversely affect the Business
6.4 If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for there is any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement dispute between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any Buyer as to whether liability in respect of rights any third party claim should be admitted or claims contemplated whether any claim related to a right of first recovery from a third party (under paragraph 5) or a third party claim should be settled or compromised, liability shall not be admitted, and that claim shall not be settled or comprised, other than in accordance with the provisions of this paragraph. Any such dispute shall be referred to leading counsel agreed between the Seller and the Buyer or, in default of agreement on or before the date falling five Business Days after the date on which an individual is first proposed for the purpose by either the Seller or the Buyer, by the President for the time being of the Law Society of England and Wales on the application of either the Seller or the Buyer. Any individual to whom a dispute is so referred shall be instructed in writing to give a written opinion, as soon as is reasonably practicable, as to which of the courses of conduct proposed by the Buyer and by the Seller is most likely to result in the third party claim being agreed, settled or compromised at the least cost to the Seller, unless that course of action has a demonstrable risk of having a material and adverse effect on the Business and the other course of action proposed does not in which case, the individual to who the dispute has been referred shall give his opinion as to the course of action which carries the least risk of a material and adverse effect on the Business. The decision of counsel (who shall act as expert and not as arbitrator) shall be final and binding on the Buyer and the Seller for all purposes. Counsel’s fees and expenses shall be borne by the Seller and the Buyer as counsel may determine in his sole discretion or, if no such determination is made by the Seller and the Buyer in equal shares. The parties shall then implement counsel’s decision as soon as is reasonably practicable.
6.5 References in this Clause 11.4) without paragraph 6 to any claim, action or demand against the consent Buyer include the assertion of any Group Companyright to the same, including a right of termination.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Business and Assets (TRM Corp)
Conduct of Third Party Claims. 5.1 If the a Charger Group Company becomes aware of any matter or circumstance that may which might give rise to a Claim Relevant Warranty Claim:
5.1.1 the Company shall promptly and, in any event, within 20 Business Days give notice to the Partner that has given the relevant Warranty (the “Warrantor”) of the matter (stating in reasonable detail the nature of the matter and, so far as practicable, the amount claimed) and shall consult with the Warrantor with respect to the matter;
5.1.2 notwithstanding paragraph 5.1.1 of this schedule 10, if the matter has become the subject of any proceedings the Company shall give the notice within sufficient time to enable the Warrantor time to contest the proceedings before any first instance judgment in respect of such proceedings is given;
5.1.3 the Warrantor shall indemnify each Charger Group Company against all costs and expenses which it may incur in taking any such action as the Warrantor may request pursuant to paragraph 5.1.5 of this schedule 10;
5.1.4 the Company shall (and shall procure that any other relevant Charger Group Company shall) provide to the Warrantor, its insurers and advisers reasonable access to premises and personnel and to relevant assets, documents and records within the power or control of each member of the Charger Group for the purposes of investigating the matter and enabling the Warrantor to take the action referred to in paragraph 5.1.5 of this schedule 10;
5.1.5 the Company shall (and shall procure that any other relevant Charger Group Company shall):
(a) take such action or institute such proceedings as the Warrantor or its insurers may reasonably request to dispute, resist, defend, compromise, remedy, mitigate or appeal the matter or enforce against any person (other than a Tax Claim is a result the Warrantor or any member of its Group) the rights of the Warrantor or its insurers in relation to the matter;
(b) in connection with any proceedings related to the matter (other than against the Warrantor or any member of its Group) use professional advisers nominated by the Warrantor or its insurers and, if the Warrantor or its insurers so request, allow the Warrantor or its insurers the exclusive conduct of the proceedings; and
(c) not admit liability in respect of, or agree or settle or compromise, the matter without the prior written consent of the Warrantor, provided that, in each case, the Company shall not be obliged to take any action which would cause its business interests (or those of any other Charger Group Company) to be materially prejudiced; and
5.1.6 the Warrantor shall keep the Company regularly informed of the progress of the matter and shall provide the Company with copies of all relevant documents and such other information in its possession as may be reasonably requested by the Company.
5.2 If a claim by Charger Group Company becomes aware of any matter which might give rise to a third party (a “Third Party Relevant Warranty Claim”) then:
11.4.1 , the Purchaser Company shall, until such time as the Warrantor shall take the action referred to the extent reasonably practicable and subject to Applicable Law, in paragraph 5.1.5 of this schedule 10 (if applicable):
5.2.1 consult with the Seller Warrantor, and take account of the reasonable requirements of the Warrantor, in relation to the conduct of that matter, provided that the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim Company shall not be compromisedobliged to take any action which would cause its business interests (or those of any other member of its Group) to be materially prejudiced;
5.2.2 keep the Warrantor promptly informed of the progress of that matter and provide the Warrantor with copies of all relevant documents and such other information in the Charger Group’s possession as may reasonably be requested by the Warrantor; and
5.2.3 not cease to dispute or defend that matter or admit liability in respect of, disposed of or settled agree or settle or compromise that matter without the prior written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructionsWarrantor, provided that the appointment of such adviser or advisers Company shall have been approved in writing by the Purchaser (such approval not be obliged to be unreasonably withheld, conditioned or delayed); and
(b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;
which would cause its business interests (b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising or those of any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expensesits Group) that may to be incurred as a result of the Seller assuming conduct of the Third Party Claimmaterially prejudiced.
11.4.7 The covenants in this Clause 11.4 may be enforced:
(i) by any Group Company against the Seller; and
(ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000.
11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.
Appears in 1 contract
Samples: Global Contribution Agreement (Mondelez International, Inc.)
Conduct of Third Party Claims. 8.1 If the matter or circumstance that may give rise to a Claim other than a Tax Claim is a result Purchaser becomes aware of or in connection with a any claim by a third party (a “Third Party Claim”) then:
11.4.1 after Completion which is likely to result in a Claim (other than any Tax Warranty Claim), the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct shall promptly give notice of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim;
11.4.2 no admissions in relation Vendors’ Representative and, subject to the Third Party Claim shall be made by or on behalf Purchaser and each member of the Purchaser or any member of Group being indemnified and secured to the Purchaser’s Group and reasonable satisfaction by the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed;
11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned Vendors against all reasonable costs and expenses (expenses, including those of its legal and professional costs and expenses) that may be advisers, incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim;
11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses:
(i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and
(ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller;
11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals;
11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of:
(i) the Purchaser shallClaim, shall and the Purchaser shall procure that any member of the Purchaser’s Group Companies shall:
(a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and
(b) not make any knowing admission of liability, liability or make any agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed);
(ii) the Seller shall:
(a) consult consultation with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim;Vendors; and
(b) without prejudice (subject to the Vendors having accepted liability to the Purchaser in respect of the Claim and the Purchaser being entitled to engage its ability own legal advisers) take such action as the Vendors may reasonably request to avoid, resist, dispute, appeal, compromise, remedy or defend the that Third Party Claim, conduct except where, in the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group;
(c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim;
(d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent reasonable opinion of the Purchaser, such consent not action would be materially prejudicial to be unreasonably withheld, conditioned or delayed. If the business of the Purchaser or member any of the Purchaser’s Group fails Companies, would be misleading or inaccurate in any material respect or would materially affect the future liability to consent Tax of any Group Company.
8.2 The rights of the Vendors under paragraph 8.1 shall only apply to a settlement or compromise, Third Party Claim if the maximum liability Vendors give notice to the Purchaser in writing of their intention to exercise their rights within twenty (20) Business Days of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and
(e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct giving notice of the Third Party Claim.
11.4.7 The covenants . If the Vendors do not give notice during that period, the Purchaser shall be entitled in this Clause 11.4 may be enforced:
(i) by its absolute discretion to settle, compromise, or resist any Group Company action, proceedings or claim against the Seller; and
(ii) by any member of the Seller’s Purchaser Group against the Purchaser or a Group Company, under the Contracts (Rights out of which that Third Parties) Xxx 0000Party Claim arises.
11.4.8 8.3 The provisions Purchaser shall not be precluded from bringing any Claim under this Agreement by reason of any breach of the terms of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Companyparagraph 8.
Appears in 1 contract
Samples: Share Purchase Agreement (Sienna Biopharmaceuticals, Inc.)
