Indemnification Claims Procedures. (a) An Indemnified Party may make an indemnification claim pursuant to Section 8.2 by delivering a certificate (an “Officer’s Certificate”) to the Shareholder Representative, with a copy to the Escrow Agent, (i) stating that an Indemnified Party has paid, sustained, suffered or incurred (or reasonably anticipates that it will have to pay, sustain, suffer or incur) Losses, and (ii) specifying in reasonable detail the individual items of Losses included in the aggregate amount of the Losses being claimed, the date each such item was paid, sustained, suffered, incurred or accrued, or the basis for such anticipated liability, and, if applicable, the nature of the misrepresentation, breach of warranty or covenant to which such item is related. The Escrow Agent shall not be required to make any assessment of the foregoing Officer’s Certificate and shall be able to rely conclusively upon its content. (b) Following receipt of an Officer’s Certificate, the Shareholder Representative shall have thirty (30) calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an “Objection Notice”) to the Indemnified Party submitting such Officer’s Certificate at the address of such Indemnified Party set forth in such Officer’s Certificate, with a copy to the Escrow Agent. In the event that the Shareholder Representative shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Certificate within the foregoing thirty (30) calendar-day period, the Shareholder Representative shall be deemed to have irrevocably agreed and consented to such item or amount. Upon the expiration of such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to the Indemnified Party that has previously delivered the Officer’s Certificate only an amount of cash equal to any item(s) and amount(s) that the Shareholder Representative is deemed to have accepted pursuant to this Section 8.5(b). (c) In the event that the Shareholder Representative shall object, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Certificate, the Shareholder Representative and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective Parties with respect to each of such claims. If the Shareholder Representative and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereof. (d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative or the Indemnified Party may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative and the Indemnified Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator. (e) Any such arbitration shall be held in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator requiring payment by one Party to another, such Party shall make the payment to such other Party, including any distributions out of the Escrow Fund, as applicable. (f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
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Samples: Share Transfer Agreement, Share Transfer Agreement (Dolby Laboratories, Inc.)
Indemnification Claims Procedures. Any claim by a Party (athe “Indemnified Party”) An for indemnification pursuant to this Article VI shall be made by a written notice to the other Party (the “Indemnifying Party”) (and in the case of Section 6.01(a), (b) or (c), prior to the applicable Survival Date), describing such claim in reasonable detail, including (to the extent reasonably ascertainable) the amount or estimated amount of Losses, the basis thereof and the provisions of this Agreement upon which such claim for indemnification is made, and including a copy of all materials and claims received with respect to such claim (a “Claims Notice”). In the event an Indemnified Party may make an becomes aware of a claim made by any third party against the Indemnified Party (a “Third Party Claim”), which the Indemnified Party reasonably believes could result in a claim for indemnification claim pursuant to Section 8.2 by delivering 6.01 or Section 6.02, as applicable, the Indemnified Party shall promptly notify the Indemnifying Party of such claim in a certificate (an “Officer’s Certificate”) Claims Notice; provided, however, that no failure or delay in the serving of such notice shall in any way relieve the Indemnifying Party of its indemnification obligations except to the Shareholder Representativeextent the Indemnifying Party shall have been actually prejudiced as a result of such failure or delay. Such Claims Notice shall also reasonably summarize, with a copy to the Escrow Agentextent possible, (i) stating that an Indemnified Party has paidthe basis for the claim for indemnification and any claim or liability being asserted by a third party, sustained, suffered or incurred (or reasonably anticipates that it will have to pay, sustain, suffer or incur) Losses, and (ii) specifying in reasonable detail the individual items of Losses included in representation and warranty or covenant or other agreement that is alleged to have been inaccurate or to have been breached and (iii) (to the extent reasonably ascertainable) the aggregate amount of the Losses for which a claim is being claimed, the date each such item was paid, sustained, suffered, incurred or accrued, or the basis for such anticipated liability, and, if applicable, the nature of the misrepresentation, breach of warranty or covenant to which such item is relatedmade under this Article VI. The Escrow Agent shall not be required to make any assessment of the foregoing Officer’s Certificate and shall be able to rely conclusively upon its content.
(b) Following receipt of an Officer’s Certificatea Claims Notice with respect to a Third Party Claim, the Shareholder Representative shall have thirty (30) calendar days Indemnifying Party may, at its option, assume the defense of the Third Party Claim and any litigation resulting therefrom with counsel selected by it, subject to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an “Objection Notice”) the Indemnifying Party undertaking, in a form reasonably acceptable to the Indemnified Party submitting such Officer’s Certificate at Party, to indemnify the address of such Indemnified Party set forth in such Officer’s Certificate, with a copy and its Related Parties for any Losses arising therefrom (subject to Section 6.05 and the Escrow Agentother provisions of this Article VI). In the event that the Shareholder Representative shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Certificate within Indemnifying Party assumes the foregoing thirty (30) calendar-day period, the Shareholder Representative shall be deemed to have irrevocably agreed and consented to such item or amount. Upon the expiration of such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to the Indemnified Party that has previously delivered the Officer’s Certificate only an amount of cash equal to any item(s) and amount(s) that the Shareholder Representative is deemed to have accepted pursuant to this Section 8.5(b).
(c) In the event that the Shareholder Representative shall object, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Certificate, the Shareholder Representative and the Indemnified Party shall attempt in good faith to agree upon the rights defense of the respective Parties with respect to each of such claims. If the Shareholder Representative and the Indemnified Third Party should so agreeClaim, a memorandum setting forth such agreement shall be prepared and signed by both Parties and shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative or the Indemnified Party may demand arbitration retain separate co-counsel at its sole cost and expense and participate in the defense of such Third Party Claim; provided that if the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable named parties to the Shareholder Representative Third Party Claim or related litigation include both the Indemnifying Party and the Indemnified Party. In , and in the event that, within thirty (30) calendar days after submission written opinion of any dispute to arbitration, the Shareholder Representative and Indemnified Party’s outside counsel there exists a material conflict of interest between the Indemnified Party cannot mutually agree on one arbitratorand the Indemnifying Party, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Representative and the Indemnified Party may strike up engage separate counsel and the Indemnifying Party shall pay the reasonable and documented fees and disbursements of such separate counsel (subject to three (3consultation in relation to the choice of counsel with the Indemnifying Party) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.
(e) Any such arbitration shall be held in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating limited to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed one counsel to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision Whether or not the Indemnifying Party has assumed the defense of a Third Party Claim, the Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect to any settlement entered into or any judgment consented to without the Indemnifying Party’s prior written consent (not to be unreasonably withheld). The Indemnified Party shall reasonably cooperate and assist the Indemnifying Party in determining the validity of any claim for indemnity and in otherwise defending and resolving such matters, which assistance and cooperation shall include providing reasonable access to and copies of information, records and documents reasonably requested relating to such matters. Any indemnification payment shall be written and shall be supported by written findings of fact and conclusions which shall set forth treated for tax purposes as an adjustment to the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision applicable portion of the arbitrator requiring payment by one Party Consideration, to another, such Party shall make the payment to such other Party, including any distributions out of the Escrow Fund, as applicableextent permitted under applicable Law.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (GCM Grosvenor Inc.), Purchase and Sale Agreement (GCM Grosvenor Inc.)
Indemnification Claims Procedures. (a) An Indemnified Party may make an indemnification claim pursuant to Section 8.2 Promptly following the receipt of notice by delivering a certificate (an “Officer’s Certificate”) to the Shareholder Representative, with a copy to the Escrow Agent, (i) stating that an Indemnified Party has paid, sustained, suffered or incurred (or reasonably anticipates that it will have to pay, sustain, suffer or incur) Losses, and (ii) specifying in reasonable detail the individual items of Losses included in the aggregate amount of the Losses being claimed, the date each such item was paid, sustained, suffered, incurred or accrued, or the basis for such anticipated liability, and, if applicable, the nature of the misrepresentation, breach of warranty or covenant to a Third Party Claim which such item is related. The Escrow Agent shall not be required to make any assessment of the foregoing Officer’s Certificate and shall be able to rely conclusively upon its content.
(b) Following receipt of an Officer’s Certificate, the Shareholder Representative shall have thirty (30) calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an “Objection Notice”) to the Indemnified Party submitting such Officer’s Certificate at the address of such Indemnified Party set forth believes may result in such Officer’s Certificate, with a copy to demand against the Escrow Agent. In or the event that Reserved Shares, as the Shareholder Representative shall fail to objectcase may be, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Certificate within the foregoing thirty (30) calendar-day period, the Shareholder Representative shall be deemed to have irrevocably agreed and consented to such item or amount. Upon the expiration of such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to the Indemnified Party that has previously delivered the Officer’s Certificate only an amount of cash equal to any item(s) and amount(s) that the Shareholder Representative is deemed to have accepted pursuant to this Section 8.5(b).
(c) In the event that the Shareholder Representative shall object, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Certificate, the Shareholder Representative and the Indemnified Party shall attempt notify the Indemnifying Party (which may be the Seller Stockholder Agent, in good faith the case of notification to agree upon the rights of the respective Parties with respect to each Seller Indemnitees) of such claims. If the Shareholder Representative and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund claim in accordance with the terms thereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative or the Indemnified Party may demand arbitration provisions of the matter unless Escrow Agreement. The party receiving the amount notice of the Loss that is at issue is Third Party Claim shall notify the subject other party hereto of a pending litigation with a third party, in which event arbitration such Third Party Claim. The failure to give such notice shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event relieve the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable Indemnifying Party of its obligations under this Agreement except to the Shareholder Representative and extent that the Indemnified Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Indemnifying Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide is substantially prejudiced as a list of ten (10) potential arbitrators with relevant industry experience, from which list each result of the Shareholder Representative and the Indemnified Party may strike up failure to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.
(e) Any give such arbitration shall be held in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicablenotice. Within fifteen (15) calendar business days after receipt of the notice by the Indemnifying Party pursuant to the preceding sentence, the Indemnifying Party shall notify the Indemnified Party whether it elects to control the defense of the Third Party Claim and whether it believes, in good faith, that it has justifiable cause to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein (and if so, the justification therefor). If the Indemnifying Party elects to undertake the defense of such Third Party Claim, it shall do so at its own expense with counsel of its own choosing, without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party elects not to defend the Third Party Claim or fails to pursue such Third Party Claim diligently, the Indemnified Party shall have the right to undertake, conduct and control the defense of such Third Party Claim through counsel of its own choosing. If the Indemnified Party elects to undertake and control the defense in accordance with this Section 9.07, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. In any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this Section 9.07(a), the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or litigation or the amount of or nature of any such settlement. Notwithstanding the foregoing, the Indemnifying Party shall not forfeit its right to contest its obligation to indemnify hereunder by not defending the party who may be entitled to such indemnification. The party that litigates or contests the Third Party Claim shall keep the other party fully advised of the progress and disposition of such claim.
(b) In the event the Indemnifying Party elects not to undertake the defense of the Third Party Claim or fails to pursue diligently the defense of such a claim and the Indemnified Party litigates or otherwise contests or settles the Third Party Claim, then, provided that a final determination has been made that the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall promptly reimburse the Indemnified Party for all amounts paid to settle such claim or all amounts paid in satisfaction of a judgment against the Indemnified party in contesting such claim and in providing its right to indemnification hereunder, all in accordance with the provisions of this Article IX. Notwithstanding the foregoing, no settlement of any Third Party Claim without the prior written consent of the Indemnifying Party shall be determinative of the validity of any claim that the Indemnified Party is entitled to indemnification hereunder.
(c) No Third Party Claim will be settled by the Indemnifying Party without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld; provided, however, that if such claim asserts that the Indemnifying Party is jointly and severally liable and the Indemnified Party shall be fully released from all liability relating to such third Party Claim in connection with such settlement, the Indemnifying Party shall not be required to obtain the consent of the Indemnified Party. If, however, the Indemnified party refuses to consent to a bona fide offered settlement which the Indemnifying party wishes to accept, the Indemnified Party may continue to pursue such Third Party Claim free of any participation by the Indemnifying Party, at the sole expense of the Indemnified Party. In such event, the Indemnifying Party shall pay to the Indemnified Party the amount of the offer of settlement which the Indemnified Party refused to accept, plus the costs and expenses incurred by the Indemnified Party prior to the date the Indemnifying Party notifies the Indemnified Party of the offer of settlement, all in accordance with the terms of this Article IX, and, upon the payment or receipt of such amount, as the case may be, the Indemnifying Party shall have no further liability with respect to such Third Party Claim. The Indemnifying party shall be entitled to recover from the Indemnified Party any additional expenses incurred by such Indemnifying Party as a result of the decision of the arbitrator requiring payment by one Indemnified Party to another, such Party shall make pursue the payment to such other Party, including any distributions out of the Escrow Fund, as applicablematter.
(fd) Judgment upon any award rendered by The Seller Stockholders and Seller hereby acknowledge and agree that the arbitrator may Seller Stockholders will control the Surviving Corporation after the Merger. Such parties further acknowledge and agree that the indemnification rights set forth in Section 9.03(a) shall be entered in any court having jurisdiction, including for the courts benefit of all stockholders of the County Buyer and the Surviving Corporation and the duties and responsibilities of New York, State the foregoing parties with respect to the Surviving Corporation are to act in the best interest of New York or all shareholders of the country of SwedenSurviving Corporation.
Appears in 1 contract
Indemnification Claims Procedures. All claims for indemnification by any party seeking indemnification (the "Indemnified Party") from the other party (the "Indemnifying Party") under Sections 10.1, 10.2, or 11.4 shall be asserted and resolved as follows:
(a) An In the event that any claim or demand for which the Indemnifying Party would be liable to any Indemnified Party may make an indemnification claim pursuant hereunder is asserted against or sought to Section 8.2 by delivering a certificate (an “Officer’s Certificate”) to the Shareholder Representative, with a copy to the Escrow Agent, (i) stating that an be collected from any Indemnified Party has paidby a third party, sustained, suffered or incurred the Indemnified Party shall promptly notify the Indemnifying Party (or reasonably anticipates that it will have to pay, sustain, suffer or incurand any pertinent insurance carrier) Losses, and (ii) specifying in reasonable detail of such claim or demand and the individual items of Losses included in the aggregate amount of the Losses being claimed, the date each such item was paid, sustained, suffered, incurred or accrued, or the basis for such anticipated liability, and, if applicable, estimated amount thereof to the nature of the misrepresentation, breach of warranty or covenant to extent then feasible (which such item is related. The Escrow Agent estimate shall not be required to make any assessment conclusive of the foregoing Officer’s Certificate final amount of such claim and shall be able to rely conclusively upon its content.
demand) (b) Following receipt of an Officer’s Certificate, the Shareholder Representative "Claim Notice"). The Indemnifying Party shall have thirty (30) calendar days to object to any item(s) from the personal delivery or amount(s) set forth therein by delivering written notice thereof mailing of the Claim Notice (an “Objection Notice”the "Notice Period") to notify the Indemnified Party submitting such Officer’s Certificate at whether or not the address of such Indemnifying Party desires to defend the Indemnified Party set forth against such claim or demand. All costs and expenses incurred by the Indemnifying Party in defending such Officer’s Certificateclaim or demand shall be a liability of, with a copy to and shall be paid by, the Escrow AgentIndemnifying Party. In the event that the Shareholder Representative shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Certificate Indemnifying Party notifies Indemnified Party within the foregoing thirty (30) calendar-day period, the Shareholder Representative shall be deemed Notice Period that it desires to have irrevocably agreed and consented to such item or amount. Upon the expiration of such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to defend the Indemnified Party that has previously delivered against such claim or demand and except as hereinafter provided, the Officer’s Certificate only an amount Indemnifying Party shall have the right to defend the Indemnified Party by counsel of cash equal the Indemnifying Party's own choosing, either in the Indemnifying Party's name, or in the Indemnified Party's name by appropriate proceedings. If any Indemnified Party desires to participate in, but not control, any item(s) such defense or settlement it may do so at its sole cost and amount(s) that the Shareholder Representative is deemed to have accepted pursuant to this Section 8.5(b).
(c) In the event that the Shareholder Representative shall objectexpense and, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Certificateevent, the Shareholder Representative and the Indemnified Party shall attempt cooperate with the Indemnifying Party and such counsel. To the extent the Indemnifying Party shall control or participate in good faith to agree upon the rights defense or settlement of the respective Parties with respect to each of such claims. If the Shareholder Representative and any third party claim or demand, the Indemnified Party should so agreeshall give to the Indemnifying Party and its counsel access to, a memorandum setting forth such agreement shall be prepared during normal business hours, the relevant business records and signed by both Parties other documents, and shall be furnished permit them to consult with the employees and counsel of the Indemnified Party, to the Escrow Agentextent consistent with the application of relevant evidentiary privileges. The Escrow Agent Indemnifying Party shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative or keep the Indemnified Party may demand arbitration reasonably apprised of the matter unless course of any negotiations or proceedings and the amount Indemnifying Party shall not settle any claim or demand without the consent of the Loss that is at issue is the subject of a pending litigation with a third partyIndemnified Party, in which event arbitration consent shall not be commenced until such amount is ascertained unreasonably withheld or both Parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative and the Indemnified Partyunduly delayed. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days As soon as reasonably practicable after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide Indemnifying Party has reached a list of ten (10) potential arbitrators with relevant industry experience, from which list each final decision as to whether or not all or any portion of the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.
(e) Any such arbitration shall be held in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator requiring payment by one Party to another, such Party shall make the payment obligations related to such other Party, including any distributions out of claim or demand are the Escrow Fund, as applicable.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.obligations for which the
Appears in 1 contract
Indemnification Claims Procedures. (a) An If a Buyer Indemnified Party may make an becomes aware of a claim for indemnification under Section 11.3(a) or Section 11.3(c), it will promptly notify Seller of the claim, or if under Section 11.3(b), it will promptly notify the relevant Seller Shareholder of the claim, and if a Seller Indemnified Party becomes aware of a claim pursuant for indemnification under Section 11.2, it will promptly notify Buyer of the claim (in each case, the giver of such notification being referred to hereafter as the “Indemnified Party,” and the recipient of such notification being referred to hereafter as the “Indemnifying Party”). Such indemnification notice will specify in reasonable detail, to the extent then known, the nature of the Losses suffered and the facts giving rise to the claim. Notwithstanding the foregoing, but subject to Section 8.2 by delivering a certificate (an “Officer’s Certificate”) 11.4(c), any failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from its indemnification obligations or other Liabilities hereunder except to the Shareholder Representative, with a copy extent (and only to the Escrow Agent, extent) that the Indemnifying Party demonstrates that the defense of the matter is materially prejudiced thereby.
(ib) stating that an The Indemnifying Party will have 30 days after receipt of the indemnification notice to notify the Indemnified Party has paidin writing of any objections thereto, sustained, suffered or incurred (or reasonably anticipates that it will have to pay, sustain, suffer or incur) Losses, and (ii) specifying in reasonable detail the individual items nature of Losses included in and basis for each objection. To the aggregate amount extent that the Indemnifying Party fails to timely object to all or part of the Losses being claimedan indemnification claim, the date each such item was paid, sustained, suffered, incurred or accrued, or the basis for such anticipated liability, and, if applicable, the nature of the misrepresentation, breach of warranty or covenant to which such item is related. The Escrow Agent shall not be required to make any assessment of the foregoing Officer’s Certificate and shall be able to rely conclusively upon its content.
(b) Following receipt of an Officer’s Certificate, the Shareholder Representative shall have thirty (30) calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an “Objection Notice”) to the Indemnified Indemnifying Party submitting such Officer’s Certificate at the address of such Indemnified Party set forth in such Officer’s Certificate, with a copy to the Escrow Agent. In the event that the Shareholder Representative shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Certificate within the foregoing thirty (30) calendar-day period, the Shareholder Representative shall will be deemed to have irrevocably agreed accepted Liability for the claim. To the extent that the Indemnifying Party timely objects to all or part of an indemnification claim, the Indemnifying Party and consented the Indemnified Party will negotiate in good faith to such item or amountresolve the dispute within 30 days thereafter. Upon If the expiration of such thirty (30) calendar-Indemnified Party and the Indemnifying Party are unable to resolve the dispute within that 30 day period, if the Shareholder Representative has failed then either of them may proceed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund arbitration and deliver mediation with respect to the Indemnified Party that has previously delivered the Officer’s Certificate only an amount of cash equal to any item(s) and amount(s) that the Shareholder Representative is deemed to have accepted pursuant to this dispute as provided in Section 8.5(b)12.8.
(c) In No action by an Indemnified Party to determine the event that the Shareholder Representative shall objectextent of an indemnified Liability, pursuant including voluntary disclosure to Section 8.5(b) hereofAuthorities or potential claimants, to any item(s) or amount(s) set forth will in any Officerway affect a party’s Certificate, the Shareholder Representative and the Indemnified Party shall attempt in good faith right to agree upon the rights of the respective Parties with respect to each of such claims. If the Shareholder Representative and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereofindemnification under this Agreement.
(d) If no such agreement can be reached after good faith negotiation The Seller Shareholders acknowledge and prior agree that any action taken by the Seller in its capacity as the Indemnifying Party pursuant to thirty (30) calendar days after delivery of this ARTICLE 11 with regard to any claim brought by an Objection Notice, either the Shareholder Representative or the Indemnified Party may demand arbitration of under Section 11.3(a) will be binding upon the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, Seller Shareholders and in either such event no way limit or modify the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative and the Indemnified Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitratorSeller Shareholders’ indemnification obligations under Section 11.3(a).
(e) Any such arbitration shall be held Notwithstanding any provision in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating this Agreement to the arbitration contrary (other than the proviso set forth in Section 11.3(a)(ii) and 11.3(b)(ii)), nothing shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information prevent a Buyer Indemnified Party from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of making any claim in for indemnification under any of Sections 11.3(a)(ii) through 11.3(a)(vii), Sections 11.3(b)(ii) or (b)(iii) or Section 11.3(c) even if such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellersindemnification claim could have been brought under Section 11.3(a)(i) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator requiring payment by one Party to another, such Party shall make the payment to such other Party, including any distributions out of the Escrow Fund, as applicable11.3(b)(i).
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
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Samples: Asset Purchase Agreement (Toro Co)
Indemnification Claims Procedures. 8.4.1 Upon either Buyer or any Seller becoming aware of a Claim in respect of which indemnification is provided for pursuant to Section 8.1 or Section 8.2, respectively (each, an “Indemnified Party”), as the case may be, such Indemnified Party shall give prompt written notice of such Claim to the other party (each, an “Indemnifying Party”). Such notice shall (a) An specify whether the claim arises as a result of a claim by a third party against the Indemnified Party may make an indemnification (each, a “Third Party Claim”), or whether the claim pursuant to Section 8.2 by delivering does not so arise (each, a certificate (an “Officer’s CertificateDirect Claim”) to the Shareholder Representative, with a copy to the Escrow Agent), (ib) stating that an Indemnified Party has paid, sustained, suffered or incurred (or reasonably anticipates that it will have to pay, sustain, suffer or incur) Losses, and (ii) specifying in reasonable detail the individual items of Losses included in the aggregate amount of the Losses being claimed, the date each such item was paid, sustained, suffered, incurred or accrued, or provide the basis for such anticipated liabilityClaim, andand (c) the amount of the Claim and Buyer’s/Issuer’s Damages or Seller Parties’ Damages, if as applicable, to the nature extent such information is available or reasonably ascertainable.
8.4.2 In the case of a Direct Claim, the Indemnifying Party shall have sixty (60) days from its receipt of notice of the misrepresentationClaim (“Review Period”) to investigate the Claim and associated losses. For the purpose of such investigation, breach of warranty or covenant the Indemnified Party shall make available to which the Indemnifying Party all documents and other information relied upon by the Indemnified Party to substantiate the Claim and associated losses, together with all such item is relatedother documents and information as the Indemnifying Party may reasonably request. The Escrow Agent Parties shall not be required to make any assessment negotiate in good faith the resolution of such Direct Claim during the foregoing Officer’s Certificate and shall be able to rely conclusively upon its content.
(b) Following receipt of an Officer’s Certificate, the Shareholder Representative shall have thirty (30) calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an “Objection Notice”) to following the Indemnified Party submitting such Officer’s Certificate at the address of such Indemnified Party set forth in such Officer’s Certificate, with a copy to the Escrow Agent. Review Period.
8.4.3 In the event that the Shareholder Representative shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Certificate within the foregoing thirty (30) calendar-day periodcase of a Third Party Claim, the Shareholder Representative shall be deemed to have irrevocably agreed and consented to such item or amount. Upon the expiration of such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to the Indemnified Party that has previously delivered the Officer’s Certificate only an amount of cash equal to any item(s) and amount(s) that the Shareholder Representative is deemed to have accepted pursuant to this Section 8.5(b).
(c) In the event that the Shareholder Representative shall object, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Certificate, the Shareholder Representative and the Indemnified Indemnifying Party shall attempt in good faith have the right to agree upon the rights of the respective Parties with respect to each of such claims. If the Shareholder Representative and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative or the Indemnified Party may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative and the Indemnified Party. In the event thatelect, within thirty (30) calendar days after submission of its receipt of notice of such Claim from the Indemnified Party, to participate in and assume control of the negotiation, settlement or defense of the Third Party Claim and the Indemnifying Party will not be liable for any dispute to arbitration, the Shareholder Representative and indemnification of legal expenses subsequently incurred by the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after in connection with the end defense of such thirty (30) calendarClaim except as set forth otherwise herein. The Indemnified Party shall have the right to participate in the negotiation, settlement or defense of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its expense. The Parties will co-day periodoperate with each other in good faith in all respects as may be reasonably necessary in connection with the defense, them negotiation or settlement of any such Third-Party Claim. The Indemnified Party shall co-operate in a reasonable manner with the American Arbitration Association Indemnifying Party so as to permit the Indemnifying Party to conduct such negotiation, settlement and defense; and for this purpose the Indemnified Party shall preserve all relevant records, documents, and information, in each case relating to the Third Party Claim, allow the Indemnifying Party access, upon reasonable notice, to inspect and copy all such records, documents, and information, require its Representatives, as the Indemnifying Party may reasonably request, to provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each such statements and attend and give evidence at any trial or hearing in respect of the Shareholder Representative and Third Party Claim. If the Indemnifying Party elects not to defend the Third Party Claim, or fails to timely notify the Indemnified Party in writing of its election to defend in accordance with this Section 8.4.3, the Indemnified Party may strike up to three (3) names, retain counsel and after which control the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.
(e) Any such arbitration shall be held in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms defense of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator requiring payment by one Party to another, such Party shall make the payment to such other Party, including any distributions out of the Escrow Fund, as applicableClaim.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
Appears in 1 contract
Indemnification Claims Procedures. All claims for indemnification by any party seeking indemnification (the "Indemnified Party") from another party (the "Indemnifying Party") under Sections 10.1 and 10.2 shall be asserted and resolved as follows:
(a) An In the event that any claim or demand for which the Indemnifying Party would be liable to any Indemnified Party may make an indemnification claim pursuant hereunder is asserted against or sought to Section 8.2 by delivering a certificate (an “Officer’s Certificate”) to the Shareholder Representative, with a copy to the Escrow Agent, (i) stating that an be collected from any Indemnified Party has paidby a third party, sustained, suffered or incurred the Indemnified Party shall promptly notify the Indemnifying Party (or reasonably anticipates that it will have to pay, sustain, suffer or incurand any known pertinent insurance carrier) Losses, and (ii) specifying in reasonable detail of such claim or demand and the individual items of Losses included in the aggregate amount of the Losses being claimed, the date each such item was paid, sustained, suffered, incurred or accrued, or the basis for such anticipated liability, and, if applicable, estimated amount thereof to the nature of the misrepresentation, breach of warranty or covenant to extent then feasible (which such item is related. The Escrow Agent estimate shall not be required to make any assessment conclusive of the foregoing Officer’s Certificate final amount of such claim and shall be able to rely conclusively upon its content.
demand) (b) Following receipt of an Officer’s Certificate, the Shareholder Representative "Claim Notice"). The Indemnifying Party shall have thirty (30) calendar days to object to any item(s) from the personal delivery or amount(s) set forth therein by delivering written notice thereof mailing of the Claim Notice (an “Objection Notice”the "Notice Period") to notify the Indemnified Party submitting such Officer’s Certificate at whether or not the address of such Indemnifying Party desires to defend the Indemnified Party set forth against such claim or demand. All costs and expenses incurred by the Indemnifying Party in defending such Officer’s Certificateclaim or demand shall be a liability of, with a copy to and shall be paid by, the Escrow AgentIndemnifying Party. In the event that the Shareholder Representative shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Certificate within the foregoing thirty (30) calendar-day period, the Shareholder Representative shall be deemed to have irrevocably agreed and consented to such item or amount. Upon the expiration of such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand and except as hereinafter provided, the Indemnifying Party shall have the right to defend the Indemnified Party by counsel of the Indemnifying Party's own choosing, either in the Indemnifying Party's name, or the Indemnified Party's name by appropriate proceedings. If any Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense and, in any event, the Indemnified Party shall cooperate with the Indemnifying Party and such counsel. To the extent the Indemnifying Party shall control or participate in the defense or settlement of any third party claim or demand, the Indemnified Party shall give to the Indemnifying Party and its counsel access to, during normal business hours, the relevant business records and other documents, and shall permit them to 49 consult with the employees and counsel of the Indemnified Party to the extent consistent with the application of relevant evidentiary privileges. The Indemnifying Party shall keep the Indemnified Party reasonably apprised of the course of any negotiations or proceedings and the Indemnifying Party shall not settle any claim or demand without the consent of the affected Indemnified Party, which consent shall not be unreasonably withheld or unduly delayed. As soon as reasonably practicable after the Indemnifying Party has previously delivered reached a final decision as to whether or not all or any portion of the Officer’s Certificate only an amount obligations related to such claim or demand are obligations for which the Indemnifying Party is required to indemnify such Indemnified Party hereunder and, in any event, prior to entering into any such settlement or other final resolution of cash equal any claim or demand, the Indemnifying Party shall notify the Indemnified Party in writing of its position as to whether or not all or any item(sportion of the obligations related to such claim or demand are obligations for which the Indemnifying Party is required to indemnify such Indemnified Party in accordance with this Article X.
(b) and amount(s) that If the Shareholder Representative Indemnifying Party elects or is deemed to have accepted pursuant elected not to take over the defense of any such claim or demand, the Indemnified Party shall have the right to defend, compromise and settle such claim or demand on such terms as the Indemnified Party in his, her or its discretion may determine, subject to the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld or unduly delayed, and the Indemnifying Party shall continue to be bound to indemnify the Indemnified Party in accordance with and to the extent provided under the terms of this Section 8.5(b)Article X. The Indemnified Party shall or shall direct in writing its counsel to deliver to the Indemnifying Party copies of all correspondence and other matters relating to such claim or demand. Notwithstanding the foregoing, to the extent that the claim or demand involves or could result in claims against, or potential liability of, the Indemnifying Party the extent or nature of which were not known by the Indemnifying Party as of the date the Indemnifying Party elects or is deemed to have elected not to take over the defense of such claim or demand, the Indemnifying Party shall, by written notice to the Indemnified Party, be entitled to take over the defense of such claim or demand.
(c) In the event that an Indemnified Party should have a claim against the Shareholder Representative shall objectIndemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Certificate, the Shareholder Representative and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective Parties promptly send a Claim Notice with respect to each of such claims. If the Shareholder Representative and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and shall be furnished claim to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereofIndemnifying Party.
(d) If no such agreement can be reached after good faith negotiation and prior The Indemnified Party's failure to thirty (30) calendar days after delivery give reasonably prompt notice to the Indemnifying Party of any actual, threatened or possible claim or demand which may give rise to a right of indemnification hereunder shall not relieve the Indemnifying Party of any liability which it may have to an Objection Notice, either the Shareholder Representative or the Indemnified Party may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable except to the Shareholder Representative and extent the Indemnified failure to give such notice prejudiced the Indemnifying Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.
(e) Any such arbitration shall be held in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator requiring payment by one Party to another, such Party shall make the payment to such other Party, including any distributions out of the Escrow Fund, as applicable.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
Appears in 1 contract
Indemnification Claims Procedures. (a) An With respect to Section 10.2(a), any Indemnified Party may make an indemnification claim pursuant to Section 8.2 10.2(a) by delivering a certificate (an a “Officer’s Claim Certificate”) to the Shareholder RepresentativeSeller, with a copy to the Escrow Agent, Agent (i) stating if and to the extent that an the Indemnified Party has paidis seeking recourse against the Escrow Fund), sustained, suffered or incurred (or reasonably anticipates that it will have to pay, sustain, suffer or incur) Losses, and (ii) specifying setting forth in reasonable detail (based on information then readily available to the individual items of Losses included in the aggregate amount of the Losses being claimed, the date each such item was paid, sustained, suffered, incurred or accrued, or Indemnified Party) the basis for such anticipated liability, and, if applicableindemnification and to the extent readily ascertainable, the nature of the misrepresentation, breach of warranty or covenant to which such item is related. The Escrow Agent shall not be required to make any assessment of the foregoing Officer’s Certificate and shall be able to rely conclusively upon its contentanticipated Losses.
(b) The Escrow Agent shall hold and safeguard the Escrow Fund during the Escrow Period, shall treat such fund as trust fund in accordance with the terms of this Agreement, and shall hold and dispose of the Escrow Fund only in accordance with the terms of this Agreement. Following its receipt of an Officer’s any Claim Certificate, the Shareholder Representative Seller shall have thirty forty-five (3045) calendar days to object to any item(s) or amount(s) set forth therein such Claim Certificate only if the Indemnified Party is not entitled to be indemnified and held harmless by Seller and/or the Indemnified Party is not entitled to be indemnified for the amount of the Losses specified in the Claim Certificate by delivering written notice thereof of such objection, including an explanation of the basis for such objection in reasonable detail (an “Objection Notice”) to the Indemnified Party submitting such Officer’s Claim Certificate at the address addresses of such Indemnified Party set forth in such Officer’s Claim Certificate, with a copy to the Escrow AgentAgent (if and to the extent that the Indemnified Party is seeking recourse against the Escrow Fund in connection with Section 10.2(a)). In the event that the Shareholder Representative shall fail Seller fails to object, pursuant to in accordance with this Section 8.5(b10.5(b), to any item on or amount set forth in an Officer’s before 11:59 p.m. Pacific time on the 45th calendar day following the date that the Claim Certificate within the foregoing thirty (30) calendar-day period, the Shareholder Representative shall be is deemed to have irrevocably agreed and consented to such item or amount. Upon the expiration of such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Noticebeen provided, the Escrow Agent shall promptly release from the Escrow Fund and deliver cause to the be delivered to any Indemnified Party Parties that has have previously delivered the Officer’s Claim Certificate only an amount of cash equal to any item(sthe lesser of (i) the amount then in the Escrow Fund and amount(s(ii) that the Shareholder Representative is deemed aggregate amount to have accepted which Seller failed to object pursuant to this Section 8.5(b)the Objection Notice.
(c) In the event that the Shareholder Representative Seller shall object, pursuant to in accordance with Section 8.5(b) hereof10.5(b), to any item(s) or amount(s) set forth in any Officer’s Claim Certificate, the Shareholder Representative Seller and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective Parties parties with respect to each of such claims. If the Shareholder Representative Seller and the Indemnified Party should so agree, they shall promptly prepare and execute a memorandum setting forth such agreement and, in the case of a claim against the Escrow Fund, shall be prepared and signed by both Parties and shall be furnished furnish such memorandum to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereofhereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative or provisions of Section 11.16 shall apply to any dispute among Seller, on the Indemnified Party may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third partyone hand, in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative and the Indemnified Party. In Parties, on the event thatother hand, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.under this ARTICLE X.
(e) Any such arbitration shall be held in With respect to claims against the County of New YorkEscrow Fund, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such any arbitration or court award, judgment, decree or order order, as applicable. Within fifteen (15) calendar days of a decision of the arbitrator an arbitrator(s) or court requiring payment by one Party a party to another, such Party party shall make the payment to such other Partyparty, including any distributions out of the Escrow Fund, as applicableFund with respect to Section 10.2(a).
(f) Judgment upon any award rendered by the arbitrator an arbitrator(s) may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
Appears in 1 contract
Indemnification Claims Procedures. (a) An With respect to Section 8.2(a), any Indemnified Party Parties may make an indemnification claim pursuant to Section 8.2 8.2(a) by delivering a certificate (an a “Officer’s Claim Certificate”) to the Shareholder Stockholder Representative, with a copy to the Escrow AgentAgent (if and to the extent that the Indemnified Parties are seeking recourse against the Escrow Fund) and to one or more Company Securityholders (if and to the extent that the Indemnified Parties are seeking recourse directly against any such Company Securityholders) and any of such parties also being referred to herein as the “Indemnifying Party”), (i) stating that an such Indemnified Party has Parties have paid, sustained, suffered suffered, incurred or incurred accrued (or reasonably anticipates anticipate that it they will have to pay, sustain, suffer suffer, incur, or incuraccrue) Losses, and (ii) specifying in reasonable detail the individual items of Losses included in the aggregate amount of the Losses being claimedso stated, if available, the date each such item was paid, sustained, suffered, incurred or accrued, if applicable, or the basis for such anticipated liability, and, if applicable, and the nature of the misrepresentation, breach of warranty or covenant to which such item is related. The Escrow Agent failure of an Indemnified Party to exercise promptness in such notification shall not be required amount to make any assessment a waiver of such claim to the foregoing Officer’s Certificate and shall be able to rely conclusively upon its contentextent the Indemnifying Party is not prejudiced as a result of such failure.
(b) Following its receipt of an Officer’s a Claim Certificate, the Shareholder Stockholder Representative shall have thirty (30) calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an “Objection Notice”) to the Indemnified Party Parties submitting such Officer’s Claim Certificate at the address addresses of such Indemnified Party Parties set forth in such Officer’s Claim Certificate, with a copy to the Escrow AgentAgent (if and to the extent that the Indemnified Parties are seeking recourse against the Escrow Fund in connection with Section 8.2(a). In the event that the Shareholder Stockholder Representative shall fail to object, pursuant to this Section 8.5(b), ) to any item or amount set forth in an Officer’s Claim Certificate within the foregoing thirty (30) calendar-calendar day period, the Shareholder Stockholder Representative shall be deemed to have irrevocably agreed and consented to each such item or amount. Upon With respect to claims against the Escrow Fund, upon the expiration of such thirty (30) calendar-day calendar day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to the any Indemnified Party Parties that has have previously delivered the Officer’s Claim Certificate only an amount of cash equal and shares (in proportion to the relative amount of cash and shares of Parent Common Stock originally deposited with the Escrow Agent following the Closing) whose combined value equals any item(s) and amount(s) that the Shareholder Representative Indemnifying Party is deemed to have accepted pursuant to this Section 8.5(b).
(c) In the event that the Shareholder Stockholder Representative shall object, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Claim Certificate, the Shareholder Stockholder Representative and the Indemnified Party Parties shall attempt in good faith to agree upon the rights of the respective Parties parties with respect to each of such claims. If the Shareholder Stockholder Representative and the Indemnified Party Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and parties and, in the case of a claim against the Escrow Fund, shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereofhereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Stockholder Representative or the Indemnified Party Parties may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Stockholder Representative and the Indemnified PartyParties. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Stockholder Representative and the Indemnified Party Parties cannot mutually agree on one arbitrator, then, within thirty fifteen (3015) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association Stockholder Representative and the Indemnified Parties shall provide each select one (1) arbitrator. The two (2) arbitrators so selected shall select a list of ten (10) potential arbitrators with third arbitrator, who shall have relevant industry experience, from which list each of to conduct the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitratorarbitration.
(e) Any such arbitration shall be held in the County of New YorkWilmington, New York, New YorkDelaware, under the rules then in effect of the American Arbitration Association. The arbitrator arbitrator(s) shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Partyparty, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator or arbitrators, as the case may be, shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the Parties parties an opportunity, adequate in the sole judgment of the arbitrator or majority of the three arbitrators, as the case may be, to discover all relevant information from the opposing Parties parties about the subject matter of the dispute. The arbitrator arbitrator, or a majority of the three arbitrators, as the case may be, shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator arbitrators or a majority of the three arbitrators, as the case may be, determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator or a majority of the three arbitrators, as the case may be, as to the validity and amount of any claim in such Officer’s Claim Certificate shall be final, binding, and conclusive upon the Shareholder Representative Indemnifying Party or Parties (on behalf of the Sellersas a single group, if applicable) and the Indemnified PartyParties. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitratorarbitrator(s). With respect to claims against the Escrow Fund, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator arbitrator(s) requiring payment by one Party (1) party to another, such Party party shall make the payment to such other Partyparty, including any distributions out of the Escrow Fund, as applicableFund with respect to Section 8.2(a).
(f) Judgment upon any award rendered by the arbitrator arbitrator(s) may be entered in any court having jurisdiction.
(g) The foregoing arbitration provisions shall apply to any dispute among any Indemnifying Party or Parties (as a single group, including if applicable) and the courts Indemnified Parties under this Article VIII
(h) For purposes of determining the County value of New YorkParent Common Stock in the Escrow Fund used to satisfy indemnification claims for Losses under this Article VIII, State each share of New York or the country of SwedenParent Common Stock shall be valued at $3.75.
Appears in 1 contract
Indemnification Claims Procedures. (a) An Indemnified Party may make an indemnification claim pursuant to Section 8.2 by delivering a certificate (an “Officer’s Certificate”) to the Shareholder Stockholder Representative, with a copy to the Escrow AgentAgent (if and to the extent that the Indemnified Party is seeking recourse against the Escrow Fund), and/or to one or more Effective Time Company Stockholders (if and to the extent that the Indemnified Party is seeking recourse directly against any such Effective Time Company Stockholder) (any such party being referred to herein as the “Indemnifying Party”), (i) stating that an Indemnified Party has paid, sustained, suffered suffered, incurred or incurred accrued (or reasonably anticipates that it will have to pay, sustain, suffer suffer, incur, or incuraccrue) Losses, and (ii) specifying in reasonable detail the individual items of Losses included in the aggregate amount of the Losses being claimedso stated, the date each such item was paid, sustained, suffered, incurred or accrued, or the basis for such anticipated liability, and, if applicable, the nature of the misrepresentation, breach of warranty or covenant to which such item is related. The Escrow Agent shall not be required to make any assessment of the foregoing Officer’s Certificate and shall be able to rely conclusively upon its content.
(b) Following its receipt of an Officer’s Certificate, the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) shall have thirty fifteen (3015) calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an “Objection Notice”) to the Indemnified Party submitting such Officer’s Certificate at the address of such Indemnified Party set forth in such Officer’s Certificate, with a copy to the Escrow AgentAgent if and to the extent that the Indemnified Party is seeking recourse against the Escrow Fund. In the event that the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Certificate within the foregoing thirty (30) fifteen calendar-day period, the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) shall be deemed to have irrevocably agreed and consented to each such item or amount. Upon the expiration of such thirty (30) fifteen calendar-day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to the any Indemnified Party that has previously delivered the Officer’s Certificate only an amount of cash and Escrow Shares having an aggregate value (with Escrow Shares being valued based on the applicable Trading Price and each Effective Time Company Stockholder’s Escrow Pro Rata Portion of such amount being comprised of cash and Escrow Shares in the same proportion as his, her or its Escrow Contribution) equal to any item(s) and amount(s) that the Shareholder Representative Indemnifying Party is deemed to have accepted pursuant to this Section 8.5(b).
(c) In the event that the Shareholder Representative an Indemnifying Party or Parties (as a single group, if applicable) shall object, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Certificate, the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective Parties parties with respect to each of such claims. If the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and parties and, in the case of a claim against the Escrow Fund, shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) or the Indemnified Party may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) and the Indemnified Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty fifteen (3015) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide Indemnifying Party or Parties (as a list of ten (10single group, if applicable) potential arbitrators with relevant industry experience, from which list each of the Shareholder Representative and the Indemnified Party may strike up shall each select one arbitrator. The two arbitrators so selected shall select a third arbitrator who shall have relevant industry experience. If the Indemnifying Party or Parties (as a single group, if applicable) fails to three (3) namesselect an arbitrator during this fifteen calendar-day period, and after which then the American Arbitration Association shall designate arbitration will be conducted by one (1) of the remaining individuals to serve as the arbitratorarbitrator selected by Parent.
(e) Any such arbitration shall be held in the County of New YorkAlameda County, New York, New YorkCalifornia, under the rules then in effect of the American Arbitration Association. The arbitrator arbitrator(s) shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Partyparty, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator or arbitrators, as the case may be, shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the Parties parties an opportunity, adequate in the sole judgment of the arbitrator or majority of the three arbitrators, as the case may be, to discover all relevant information from the opposing Parties parties about the subject matter of the dispute. The arbitrator arbitrator, or a majority of the three arbitrators, as the case may be, shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator arbitrators or a majority of the three arbitrators, as the case may be, determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator or a majority of the three arbitrators, as the case may be, as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative Indemnifying Party or Parties (on behalf of the Sellersas a single group, if applicable) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitratorarbitrator(s), and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator arbitrator(s) requiring payment by one Party party to another, such Party party shall make the payment to such other Partyparty, including any distributions out of the Escrow Fund, as applicable.
(f) Judgment upon any award rendered by the arbitrator arbitrator(s) may be entered in any court having jurisdiction.
(g) The foregoing arbitration provisions shall apply to any dispute among any Indemnifying Party or Parties (as a single group, including if applicable) and the courts Indemnified Parties under this Article VIII, whether relating to claims upon the Escrow Fund or to the other indemnification obligations set forth in this Article VIII; provided, however, that the foregoing arbitration shall not apply to any dispute among any Indemnifying Party or Parties (as a single group, if applicable) and the Indemnified Parties with respect to any claims arising out of or relating to any intentional or willful misrepresentation or intentional fraud or willful breach by the Company of any of its representations, warranties and/or covenants contained herein, a dispute over which either party may seek to resolve in a proceeding brought in any state or federal court located in the County of New YorkSan Mateo, State of New York California or the country City and County of SwedenSan Francisco, California.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Supergen Inc)
Indemnification Claims Procedures. (a) An With respect to Section 7.2(a), an Indemnified Party may make an indemnification claim pursuant to Section 8.2 7.2(a) by delivering a certificate (an a “Officer’s Claim Certificate”) to the Shareholder Representative, with a copy to the Escrow AgentAgent (if and to the extent that the Indemnified Party is seeking recourse against the Escrow Fund), and/or to one or more Company Stockholders (if and to the extent that the Indemnified Party is seeking recourse directly against any such Company Stockholder, (i) stating that an Indemnified Party has paid, sustainedsuffered, suffered incurred or incurred sustained (or reasonably anticipates that it will have to pay, suffer, incur or sustain, suffer or incur) Losses, and (ii) specifying in reasonable detail to the extent available the individual items of Losses included in the aggregate amount of the Losses being claimedso stated, the date each such item was paid, sustained, suffered, incurred or accruedsustained, or the basis for such anticipated liability, and, if applicable, the nature of the misrepresentation, breach of warranty or covenant to which such item is related. The , (iii) detailing any numerical calculations used in determining the amount of Losses, and (iv) detailing to what extent, if any, such claim shall include the Unvested Escrow Agent shall not be required to make any assessment of the foregoing Officer’s Certificate and shall be able to rely conclusively upon its contentAmount.
(b) Following its receipt of an Officer’s a Claim Certificate, the Shareholder Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder) shall have thirty fifteen (3015) calendar days to object to any item(s) or amount(s) set forth therein (other than claims arising pursuant to Section 7.2(a)(vi) that have been finally resolved pursuant to Section 1.9, as to which neither the Representative nor any Company Stockholder is entitled to object and for which Purchaser may obtain immediate recovery) by delivering written notice thereof which shall specify in reasonable detail (i) each amount to which the Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder) objects and (ii) the nature of each objection (an “Indemnification Objection Notice”) to the Indemnified Party submitting such Officer’s Claim Certificate at the address of such Indemnified Party set forth in such Officer’s Claim Certificate, with a copy to the Escrow AgentAgent (if and to the extent that the Indemnified Party is seeking recourse against the Escrow Fund in connection with Section 7.2(a)). In the event that the Shareholder Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder) shall fail to object, pursuant to this Section 8.5(b7.5(b), to any item or amount set forth in an Officer’s Claim Certificate within the foregoing thirty fifteen (3015) calendarcalendar day period (other than claims arising pursuant to Section 7.2(a)(vi) that have been finally resolved pursuant to Section 1.9, as to which Purchaser may obtain immediate recovery without waiting for such 15-day period), the Shareholder Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder) shall be deemed to have irrevocably agreed and consented to each such item or amount. Upon With respect to claims against the Escrow Fund for which the Representative does not object, or upon the expiration of such thirty fifteen (3015) calendar-day period, if the Shareholder Representative has failed calendar day period or for claims arising pursuant to provide an Objection NoticeSection 7.2(a)(vi) that have been finally resolved pursuant to Section 1.9, the Escrow Agent shall promptly release from the Escrow Fund and deliver to the any Indemnified Party that has previously delivered the Officer’s Claim Certificate only an amount of cash equal and Purchaser Common Stock (valued at the Purchaser Common Stock Value) equal, in aggregate, to any item(s) and amount(s) that the Shareholder Representative has not objected to, or is deemed to have accepted pursuant to this Section 8.5(b7.5(b). The form of satisfaction of the amount of any indemnification obligation of the applicable Company Stockholders under this ARTICLE VII disbursed to Purchaser from the Escrow Fund shall be in the same proportion as to the aggregate Escrow Amount, except for claims arising pursuant to Section 7.2(a)(v) and 7.2(a)(vi), which may be satisfied solely in cash.
(c) In the event that the Shareholder Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder) shall object, pursuant to Section 8.5(b7.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s CertificateClaim Certificate (other than claims arising pursuant to Section 7.2(a)(vi)), the Shareholder Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder) and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective Parties parties with respect to each of such claims. If the Shareholder Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder) and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and parties and, in the case of a claim against the Escrow Fund, shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereofhereof; provided, however, that for claims arising pursuant to Section 7.2(a)(vi) that have been finally resolved pursuant to Section 1.9, the Escrow Agent may rely solely on the Claim Certificate without seeking consent from the Representative or a Company Stockholder or a jointly executed memorandum.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Indemnification Objection Notice, either the Shareholder Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder) or the Indemnified Party may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending commence litigation with a third party, respect to such claim(s) in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, accordance with Section 9.7. The costs and in either such event the matter shall be settled by arbitration conducted by one expenses (1) arbitrator mutually agreeable to the Shareholder Representative and the Indemnified Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1including reasonable legal fees) of the remaining individuals to serve as the arbitrator.
(e) Any prevailing party in any such arbitration litigation shall be held in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded paid by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator requiring payment by one Party to another, such Party shall make the payment to such other Party, including any distributions out of the Escrow Fund, as applicableparty.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
Appears in 1 contract
Samples: Merger Agreement (Quantum Corp /De/)
Indemnification Claims Procedures. (a) An With respect to Section 8.2(a), any Indemnified Party may make an indemnification claim pursuant to Section 8.2 8.2(a) by delivering a certificate submitted in good faith and signed by the Indemnified Party (an a “Officer’s Claim Certificate”) to the Shareholder Stockholder Representative, with a copy to the Escrow Agent, (i) stating that an such Indemnified Party has paid, sustained, suffered or incurred (or reasonably anticipates anticipate that it they will have to pay, sustain, suffer or incur) Losses, and (ii) specifying in reasonable detail the individual items of Losses included in the aggregate amount of the Losses being claimedso stated, if available, the date each such item was paid, sustained, sufferedsuffered or incurred, incurred or accruedif applicable, or and the basis for such Losses (or anticipated liabilityLosses), and, if applicable, and the nature basis of the misrepresentationindemnification claim for such Losses (or anticipated Losses) by specific reference to the provisions of this Agreement. Any such Claim Certificate shall state whether, breach of warranty and to the extent, Losses claimed thereby are pursuant Section 8.2(a)(iii) or covenant to which such item is related. The Escrow Agent shall not be required to make any assessment of the foregoing Officer’s Certificate and shall be able to rely conclusively upon its contentSection 8.2(a)(v).
(b) Following his receipt of an Officer’s a Claim Certificate, the Shareholder Stockholder Representative shall have thirty twenty-one (3021) calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an “Objection Notice”) to the Indemnified Party submitting such Officer’s Claim Certificate at the address of such Indemnified Party set forth in such Officer’s Claim Certificate, with a copy to the Escrow Agent. In the event that the Shareholder Stockholder Representative shall fail to object, pursuant to this Section 8.5(b8.4(b), to any item or amount set forth in an Officer’s a Claim Certificate within the foregoing thirty twenty-one (3021) calendar-calendar day period, the Shareholder Stockholder Representative shall be deemed to have irrevocably agreed and consented to each such item or amount. Upon the expiration of such thirty twenty-one (3021) calendar-calendar day period, period and if the Shareholder Representative Escrow Agent has failed to provide not received an Objection Notice, the Escrow Agent Agent, in accordance with Section 8.6 and the Escrow Agreement, shall promptly release from the Escrow Fund and deliver to the such Indemnified Party that has previously delivered the Officer’s Claim Certificate only an amount of cash property from the Escrow Fund equal in value to any item(s) and the amount(s) that the Shareholder Stockholder Representative is deemed to have accepted pursuant to this Section 8.5(b8.4(b). If such an Objection Notice has been received, the Escrow Agent shall not release any property from the Escrow Fund with respect to such Claim Certificate unless and until the Escrow Agent shall receive a written memorandum pursuant to Section 8.4(c) or Section 8.4(e).
(c) In the event that the Shareholder Stockholder Representative shall object, object pursuant to Section 8.5(b8.4(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Claim Certificate, the Shareholder Stockholder Representative and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective Parties parties with respect to each of such claims. If the Shareholder Stockholder Representative and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties parties and shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and and, if applicable, make distributions from the Escrow Fund in accordance with the terms thereofhereof and the terms of the Escrow Agreement, but otherwise shall not release any property from the Escrow Fund with respect to such Claim Certificate unless and until the Escrow Agent shall receive a written memorandum pursuant to this Section 8.4(c) or Section 8.4(e).
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Stockholder Representative or the Indemnified Party may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Stockholder Representative and the Indemnified Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Stockholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty fifteen (3015) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Stockholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate each select one (1) of arbitrator. The two (2) arbitrators so selected shall select a third arbitrator, who shall have relevant industry experience, to conduct the remaining individuals to serve as the arbitratorarbitration.
(e) Any such arbitration shall be held in the County of New YorkAlameda County, New York, New York, California under the rules then in effect of the American Arbitration Association. The arbitrator arbitrator(s) shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Partyparty, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator or arbitrators, as the case may be, shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the Parties parties an opportunity, adequate in the sole judgment of the arbitrator or majority of the three arbitrators, as the case may be, to discover all relevant information from the opposing Parties parties about the subject matter of the dispute. The arbitrator arbitrator, or a majority of the three arbitrators, as the case may be, shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including reasonable attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator arbitrators or a majority of the three arbitrators, as the case may be, determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator or a majority of the three arbitrators, as the case may be, as to the validity and amount of any claim in such Officer’s Claim Certificate shall be final, binding, and conclusive upon the Shareholder Stockholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicablearbitrator(s). Within fifteen (15) calendar days of a decision of the arbitrator arbitrator(s) requiring payment by one Party to anotherthe Indemnified Party, such the Stockholder Representative and the Indemnified Party shall furnish to the Escrow Agent a memorandum signed by both parties instructing the Escrow Agent to make the payment to such other Partya distribution, including any distributions if any, out of the Escrow FundFund in accordance with the decision of the arbitrator(s). The Escrow Agent shall be entitled to rely on any such memorandum and, as if applicable, make distributions from the Escrow Fund in accordance with the terms hereof and the terms of the Escrow Agreement, but otherwise shall not release any property from the Escrow Fund with respect to such Claim Certificate unless and until the Escrow Agent shall receive a written memorandum pursuant to this Section 8.4(e).
(f) Judgment upon any award rendered by the arbitrator arbitrator(s) may be entered in any court having jurisdiction.
(g) The foregoing arbitration provisions shall apply to any dispute among any Indemnifying Party or Parties (as a single group, including if applicable) and the courts of the County of New York, State of New York or the country of SwedenIndemnified Parties under this Article VIII.
Appears in 1 contract
Indemnification Claims Procedures. (a) An Indemnified Party may make an indemnification claim pursuant to Section 8.2 by delivering a certificate (an “Officer’s Certificate”) to Promptly following the Shareholder Representative, with a copy to the Escrow Agent, (i) stating that an Indemnified Party has paid, sustained, suffered or incurred (or reasonably anticipates that it will have to pay, sustain, suffer or incur) Losses, and (ii) specifying in reasonable detail the individual items of Losses included in the aggregate amount of the Losses being claimed, the date each such item was paid, sustained, suffered, incurred or accrued, or the basis for such anticipated liability, and, if applicable, the nature of the misrepresentation, breach of warranty or covenant to which such item is related. The Escrow Agent shall not be required to make any assessment of the foregoing Officer’s Certificate and shall be able to rely conclusively upon its content.
(b) Following receipt of an Officer’s Certificatenotice by the iOwn Indemnitees of a Third Party Claim which the iOwn Indemnitees believe may result in a demand against the Escrow, iOwn shall notify the Shareholder Representative shall have thirty (30) calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an “Objection Notice”) to the Indemnified Party submitting such Officer’s Certificate at the address Stockholder Agent of such Indemnified Party set forth in such Officer’s Certificate, with a copy to the Escrow Agent. In the event that the Shareholder Representative shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Certificate within the foregoing thirty (30) calendar-day period, the Shareholder Representative shall be deemed to have irrevocably agreed and consented to such item or amount. Upon the expiration of such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to the Indemnified Party that has previously delivered the Officer’s Certificate only an amount of cash equal to any item(s) and amount(s) that the Shareholder Representative is deemed to have accepted pursuant to this Section 8.5(b).
(c) In the event that the Shareholder Representative shall object, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Certificate, the Shareholder Representative and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective Parties with respect to each of such claims. If the Shareholder Representative and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund claim in accordance with the terms thereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative or the Indemnified Party may demand arbitration provisions of the matter unless Escrow Agreement. Promptly following the amount receipt by the Seller Indemnitees of notice of a Third Party Claim which the Seller Indemnitees believe may result in a demand for indemnification pursuant to Section 7.4 hereof, the Stockholder Agent shall notify iOwn of such claim. The party receiving the notice of the Loss that is at issue is Third Party Claim shall notify the subject other party hereto of a pending litigation with a third party, in which event arbitration such Third Party Claim. The failure to give such notice shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event relieve the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable Indemnifying Party of its obligations under this Agreement except to the Shareholder Representative and extent that the Indemnified Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Indemnifying Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide is substantially prejudiced as a list of ten (10) potential arbitrators with relevant industry experience, from which list each result of the Shareholder Representative and the Indemnified Party may strike up failure to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.
(e) Any give such arbitration shall be held in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicablenotice. Within fifteen (15) calendar business days after receipt of the notice by the Indemnifying Party pursuant to the preceding sentence, the Indemnifying Party shall notify the Indemnified Party whether it elects to control, the defense of the Third Party Claim. If the Indemnifying Party elects to undertake the defense of such Third Party Claim, it shall do so at its own expense with counsel of its own choosing and it shall acknowledge in writing without, qualification its indemnification obligations as provided in this Agreement to the Indemnified Party as to such Third Party Claim. If the Indemnifying Party elects not to defend the Third Party Claim or fails to pursue such Third Party Claim diligently, the Indemnified Party shall have the right to undertake, conduct and control the defense of such Third Party Claim through counsel of its own choosing. The party that litigates or contests the Third Party Claim shall keep the other party fully advised of the progress and disposition of such claim.
(b) In the event the Indemnifying Party elects not to undertake the defense of the Third Party Claim or fails to pursue diligently the defense of such a claim and the Indemnified Party litigates or otherwise contests or settles the Third Party Claim, then, provided that a final determination has been made that the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall promptly reimburse the Indemnified Party for all reasonable amounts paid to settle such claim or all amounts paid in satisfaction of a judgment against the Indemnified Party in contesting such claim and in providing its right to indemnification hereunder, all in accordance with the provisions of this Article VII. Notwithstanding the foregoing, no settlement of any Third Party Claim without the prior written consent of the Indemnifying Party shall be determinative of the validity of any claim that the Indemnified Party is entitled to indemnification hereunder.
(c) No Third Party Claim will be settled by the Indemnifying Party without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed; provided, however, that if such claim asserts that the Indemnifying Party is jointly and severally liable and the Indemnified Party shall be fully released from all liability relating to such Third Party Claim in connection with such settlement, the Indemnifying Party shall not be required to obtain the consent of the Indemnified Party. If, however, the Indemnified Party refuses to consent to a bona fide offered settlement which the Indemnifying Party wishes to accept, the Indemnified Party may continue to pursue such Third Party Claim free of any participation by the Indemnifying Party, at the sole expense of the Indemnified Party. In such event, the Indemnifying Party shall pay to the Indemnified Party the amount of the offer of settlement which the Indemnified Party refused to accept, plus the costs and expenses incurred by the Indemnified Party prior to the date the Indemnifying Party notifies the Indemnified Party of the offer of settlement, all in accordance with the terms of this, Article VII, and, upon the payment or receipt of such amount, as the case may be, the Indemnifying Party shall have no further liability with respect to such Third Party Claim. The Indemnifying Party shall be entitled to recover from the Indemnified Party any additional expenses incurred by such Indemnifying Party as a result of the decision of the arbitrator requiring payment by one Indemnified Party to another, such Party shall make pursue the payment to such other Party, including any distributions out of the Escrow Fund, as applicablematter.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
Appears in 1 contract
Samples: Merger Agreement (Iown Holdings Inc)
Indemnification Claims Procedures. (a) An Indemnified Party may make an indemnification claim pursuant to Section 8.2 by delivering a certificate (an “Officer’s Certificate”) to Promptly following the Shareholder Representative, with a copy to the Escrow Agent, (i) stating that an Indemnified Party has paid, sustained, suffered or incurred (or reasonably anticipates that it will have to pay, sustain, suffer or incur) Losses, and (ii) specifying in reasonable detail the individual items of Losses included in the aggregate amount of the Losses being claimed, the date each such item was paid, sustained, suffered, incurred or accrued, or the basis for such anticipated liability, and, if applicable, the nature of the misrepresentation, breach of warranty or covenant to which such item is related. The Escrow Agent shall not be required to make any assessment of the foregoing Officer’s Certificate and shall be able to rely conclusively upon its content.
(b) Following receipt of an Officer’s Certificate, notice by the Shareholder Representative shall have thirty (30) calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an “Objection Notice”) to Xxxxxx Indemnitees of a Third Party Claim which the Indemnified Party submitting such Officer’s Certificate at the address of such Indemnified Party set forth Xxxxxx Indemnitees believe may result in such Officer’s Certificate, with a copy to the Escrow Agent. In the event that the Shareholder Representative shall fail to object, demand for indemnification pursuant to this Section 8.5(b)Article VII, to any item or amount set forth in an Officer’s Certificate within the foregoing thirty (30) calendar-day period, the Shareholder Representative Xxxxxx shall be deemed to have irrevocably agreed notify Seller and consented to such item or amount. Upon the expiration Parent of such thirty (30) calendar-day period, if claim. Promptly following the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to the Indemnified receipt by a Seller Indemnitee of notice of a Third Party that has previously delivered the Officer’s Certificate only an amount of cash equal to any item(s) and amount(s) that the Shareholder Representative is deemed to have accepted Claim which such Seller Indemnitee believes may result in a demand for indemnification pursuant to this Section 8.5(b).
(c) In Article VII, such Seller Indemnitee shall notify Xxxxxx of such claim. The failure to give such notice shall not relieve the event Indemnifying Party of its obligations under this Agreement except to the extent that the Shareholder Representative shall object, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Certificate, the Shareholder Representative and the Indemnified Indemnifying Party shall attempt in good faith to agree upon the rights is substantially prejudiced as a result of the respective Parties with respect failure to each of give such claims. If the Shareholder Representative and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative or the Indemnified Party may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative and the Indemnified Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.
(e) Any such arbitration shall be held in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicablenotice. Within fifteen (15) calendar business days after receipt of the notice by the Indemnifying Party pursuant to the preceding sentence, the Indemnifying Party shall notify the Indemnified Party whether it elects to control the defense of the Third Party Claim. If the Indemnifying Party elects to undertake the defense of such Third Party Claim, it shall do so at its own expense with counsel of its own choosing and it shall acknowledge in writing without qualification its indemnification obligations as provided in this Agreement to the Indemnified Party as to such Third Party Claim. If the Indemnifying Party elects not to defend the Third Party Claim or fails to pursue such Third Party Claim diligently, the Indemnified Party shall have the right to undertake, conduct and control the defense of such Third Party Claim through counsel of its own choosing and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such Third Party Claim, with its counsel and at its expense. The party that litigates or contests the Third Party Claim shall keep the other party fully advised of the progress and disposition of such claim.
(b) In the event the Indemnifying Party elects not to undertake the defense of the Third Party Claim or fails to pursue diligently the defense of such a claim and the Indemnified Party litigates or otherwise contests or settles the Third Party Claim, then, provided that a final determination has been made that the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall promptly reimburse the Indemnified Party for all amounts paid to settle such claim or all amounts paid in satisfaction of a judgment against the Indemnified Party in contesting such claim and in providing its right to indemnification hereunder, all in accordance with the provisions of this Article VII. Notwithstanding the foregoing, no settlement of any Third Party Claim without the prior written consent of the Indemnifying Party shall be determinative of the validity of any claim that the Indemnified Party is entitled to indemnification hereunder.
(c) No Third Party Claim will be settled by the Indemnifying Party without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld; provided, however, that if such claim asserts that the Indemnifying Party is jointly and severally liable and the Indemnified Party shall be fully released from all liability relating to such Third Party Claim in connection with such settlement, the Indemnifying Party shall not be required to obtain the consent of the Indemnified Party. If, however, the Indemnified Party refuses to consent to a bona fide offered settlement which the Indemnifying Party wishes to accept, the Indemnified Party may continue to pursue such Third Party Claim free of any participation by the Indemnifying Party, at the sole expense of the Indemnified Party. In such event, the Indemnifying Party shall pay to the Indemnified Party the amount of the offer of settlement which the Indemnified Party refused to accept, plus the reasonable costs and expenses incurred by the Indemnified Party prior to the date the Indemnifying Party notifies the Indemnified Party of the offer of settlement, all in accordance with the terms of this Article VII, and, upon the payment or receipt of such amount, as the case may be, the Indemnifying Party shall have no further liability with respect to such Third Party Claim. The Indemnifying Party shall be entitled to recover from the Indemnified Party any additional expenses incurred by such Indemnifying Party as a result of the decision of the arbitrator requiring payment by one Indemnified Party to another, such Party shall make pursue the payment to such other Party, including any distributions out of the Escrow Fund, as applicablematter.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
Appears in 1 contract
Samples: Stock Purchase Agreement (Watson Pharmaceuticals Inc)
Indemnification Claims Procedures. (a) An If a Buyer Indemnified Party may make an becomes aware of a claim for indemnification under Section 10.3, it will promptly notify Seller of the claim, and if a Seller Indemnified Party becomes aware of a claim pursuant for indemnification under Section 10.2, it will promptly notify Buyer of the claim (in each case, the giver of such notification being referred to Section 8.2 by delivering a certificate (an hereafter as the “Officer’s CertificateIndemnified Party,” and the recipient of such notification being referred to hereafter as the “Indemnifying Party”) ). Such indemnification notice will specify in reasonable detail, to the Shareholder Representativeextent then known, with a copy the nature and amount of the Losses suffered and the facts giving rise to the Escrow Agent, claim.
(ib) stating that an The Indemnifying Party will have 30 days after receipt of the indemnification notice to notify the Indemnified Party has paidin writing of any objections thereto, sustained, suffered or incurred (or reasonably anticipates that it will have to pay, sustain, suffer or incur) Losses, and (ii) specifying in reasonable detail the individual items nature of Losses included in and basis for each objection. To the aggregate amount extent that the Indemnifying Party fails to timely object to all or part of the Losses being claimedan indemnification claim, the date each such item was paid, sustained, suffered, incurred or accrued, or the basis for such anticipated liability, and, if applicable, the nature of the misrepresentation, breach of warranty or covenant to which such item is related. The Escrow Agent shall not be required to make any assessment of the foregoing Officer’s Certificate and shall be able to rely conclusively upon its content.
(b) Following receipt of an Officer’s Certificate, the Shareholder Representative shall have thirty (30) calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an “Objection Notice”) to the Indemnified Indemnifying Party submitting such Officer’s Certificate at the address of such Indemnified Party set forth in such Officer’s Certificate, with a copy to the Escrow Agent. In the event that the Shareholder Representative shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Certificate within the foregoing thirty (30) calendar-day period, the Shareholder Representative shall will be deemed to have irrevocably agreed and consented accepted liability for the claim. To the extent that the Indemnifying Party timely objects to such item all or amount. Upon the expiration part of such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Noticeindemnification claim, the Escrow Agent shall promptly release from the Escrow Fund and deliver to the Indemnified Indemnifying Party that has previously delivered the Officer’s Certificate only an amount of cash equal to any item(s) and amount(s) that the Shareholder Representative is deemed to have accepted pursuant to this Section 8.5(b).
(c) In the event that the Shareholder Representative shall object, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Certificate, the Shareholder Representative and the Indemnified Party shall attempt will negotiate in good faith to agree upon resolve the rights of the respective Parties with respect to each of such claimsdispute within 30 days thereafter. If the Shareholder Representative Indemnified Party and the Indemnified Indemnifying Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and shall be furnished are unable to resolve the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative or the Indemnified Party may demand arbitration of the matter unless the amount of the Loss dispute within that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative and the Indemnified Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-30 day period, then either of them may proceed to litigate the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.
(e) Any such arbitration shall be held in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating dispute subject to the arbitration shall be paid, including the respective expenses provisions of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator requiring payment by one Party to another, such Party shall make the payment to such other Party, including any distributions out of the Escrow Fund, as applicablethis Agreement.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
Appears in 1 contract
Samples: Asset Purchase Agreement (Zep Inc.)
Indemnification Claims Procedures. (a) An In connection with Claims by a Company Indemnitee, or by a RealNetworks Indemnitee against an Executive Shareholder, the Indemnified Party may make an shall give written notice (the "Claim Notice") of any Claim for indemnification claim pursuant to Section 8.2 by delivering a certificate (an “Officer’s Certificate”) under this Article VIII to the Shareholder RepresentativeIndemnifying Party as promptly as practicable, with a copy to the Escrow Agent, but in any event: (i) stating that an Indemnified if such Claim relates to a Third Party has paidClaim, sustainedwithin 30 days after the assertion of such Third Party Claim, suffered or incurred (or reasonably anticipates that it will have to pay, sustain, suffer or incur) Losses, and (ii) if such Claim is not in respect of a Third Party Claim, within 30 days after the discovery of facts upon which the Indemnified Party intends to base a Claim for indemnification pursuant to Article VIII hereof; provided, however, that the failure or delay to so notify the Indemnifying Party shall not relieve the Indemnifying Party of any obligation or liability that the Indemnifying Party may have to the Indemnified Party except to the extent that the Indemnifying Party demonstrates that the Indemnifying Party's ability to defend or resolve such Claim is adversely affected thereby. Any such Claim Notice shall describe the facts and circumstances on which the asserted Claim for indemnification is based and shall specify how such Indemnified Party intends to recover such funds pursuant to this Agreement and the basis for the determination of the amount which the Indemnified Party intend to recover.
(b) The Provisions of this subsection (b) shall apply to Claims by a Company Indemnitee, or by a RealNetworks Indemnitee against an Executive Shareholder, arising from Third Party Claims.
(i) Subject to the rights of or duties to any insurer or other third party having potential liability therefor, the Indemnifying Party shall have the right, upon written notice given to the Indemnified Party within 30 days after receipt of the notice from the Indemnified Party of any Third Party Claim, to assume the defense or handling of such Third Party Claim, at the Indemnifying Party's sole expense, in which case the provisions of Section 8.8(b)(ii) hereof shall govern.
(ii) The Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party in connection with conducting the defense or handling of such Third Party Claim, and the Indemnifying Party shall defend or handle the same in consultation with the Indemnified Party and shall keep the Indemnified Party timely apprised of the status of such Third Party Claim. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, agree to a settlement of any Third Party Claim, unless (A) the settlement provides an unconditional release and discharge of the Indemnified Party and the Indemnified Party is reasonably satisfied with such discharge and release and (B) except in the case of an Executive Shareholder, the Indemnified Party shall not have reasonably objected to any such settlement on the ground that the circumstances surrounding the settlement could result in an adverse impact on the business, operations, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or prospects of the Indemnified Party. The Indemnified Party shall cooperate with the Indemnifying Party and shall be entitled to participate in the defense or handling of such Third Party Claim with its own counsel and at its own expense.
(c) In connection with Claims for indemnity arising under subsection (b) above, the further provisions of this subsection (c) shall apply.
(i) If the Indemnifying Party does not give written notice to the Indemnified Party within 30 days after receipt of the notice from the Indemnified Party of any Third Party Claim of the Indemnifying Party's election to assume the defense or handling of such Third Party Claim, the provisions of Section 8.8(c)(ii) hereof shall govern.
(ii) The Indemnified Party may, at the Indemnifying Party's expense (which shall be paid from time to time by the Indemnifying Party as such expenses are incurred by the Indemnified Party), select counsel in connection with conducting the defense or handling of such Third Party Claim and defend or handle such Third Party Claim in such manner as it may deem appropriate; provided, however, that the Indemnified Party shall keep the Indemnifying Party timely apprised of the status of such Third Party Claim and shall not settle such Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnified Party defends or handles such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party and shall be entitled to participate in the defense or handling of such Third Party Claim with its own counsel and at its own expense.
(d) The provisions of this subsection (d) shall apply to Claims by a RealNetworks Indemnitee other than those referred to in subsections (a), (b) or (c) above.
(i) RealNetworks shall give a Claim Notice to the Indemnity Representative and Escrow Agent specifying in reasonable detail the individual items of Losses included in the aggregate nature and dollar amount of the Losses being claimed, Claim. If the date each Indemnity Representative gives notice to RealNetworks and the Escrow Agent disputing any such item was paid, sustained, suffered, incurred or accrued, or Claim (a "Counter Notice") within 30 days following receipt by the basis for such anticipated liability, and, if applicable, the nature Indemnity Representative of the misrepresentationoriginal Claim Notice regarding such Claim, breach of warranty or covenant to which such item Claim shall be resolved as provided in clause (iii) below. If no Counter Notice is related. The received by the Escrow Agent shall not be required to make any assessment of the foregoing Officer’s Certificate and shall be able to rely conclusively upon its content.
(b) Following receipt of an Officer’s Certificate, the Shareholder Representative shall have thirty (within such 30) calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an “Objection Notice”) to the Indemnified Party submitting such Officer’s Certificate at the address of such Indemnified Party set forth in such Officer’s Certificate, with a copy to the Escrow Agent. In the event that the Shareholder Representative shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Certificate within the foregoing thirty (30) calendar-day period, then the Shareholder Representative dollar amount of Damages claimed by the RealNetworks Indemnitee as set forth in the Claim Notice shall be deemed to have irrevocably agreed established for purposes of the Escrow Agreement and consented to such item or amount. Upon this Agreement and, at the expiration end of such thirty (the 30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from deliver to RealNetworks that number of Escrow Shares calculated by dividing the dollar amount of such Damage by the Average Closing Price. Neither the Escrow Fund Agent nor the Indemnity Representative shall be required to inquire into or consider whether a Claim complies with the requirements of this Agreement and deliver to the Indemnified Party that has previously delivered the Officer’s Certificate only an amount of cash equal to any item(s) and amount(s) that the Shareholder Representative is deemed to have accepted pursuant to this Section 8.5(b)Escrow Agreement.
(cii) In the event that the Shareholder Representative shall object, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Certificate, the Shareholder Representative and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective Parties If a Counter Notice is given with respect to each a Claim, then the Escrow Agent shall make payment with respect to the contested amount only if (x) RealNetworks and the Indemnity Representative issue a joint written instruction to the Escrow Agent specifically authorizing such payment, or (y) written instructions are issued to the Escrow Agent by a duly authorized representative of The American Arbitration Association ("AAA") acting as arbitrator in accordance with the provisions hereof specifically authorizing such claimspayment. Either RealNetworks or the Indemnity Representative may submit the matter to binding arbitration before the AAA in Seattle, Washington, which arbitration shall be final and binding on the parties and the exclusive method, absent agreement between RealNetworks and the Indemnity Representative, for purposes of determining the ability of RealNetworks to satisfy the Claim against the Escrow Shares.
(iii) The following provisions shall apply to any such arbitration:
(A) All claims shall be settled by one arbitrator in accordance with the Commercial Arbitration Rules then in effect of the AAA (the "AAA Rules"). If the Shareholder Indemnity Representative and RealNetworks are unable to resolve any such dispute within 30 days after delivery of the Indemnified Party should so agreeCounter Notice, the Indemnity Representative and RealNetworks shall have an arbitrator appointed in accordance with the AAA Rules. The Indemnity Representative and RealNetworks shall cause the arbitrator to decide the matter to be arbitrated pursuant hereto within 30 days after the appointment of the arbitrator. The arbitrator's decision shall relate solely to whether RealNetworks is entitled to receive the contested amount (or a memorandum setting forth such agreement shall be prepared and signed by both Parties and portion thereof) pursuant to the applicable terms of the Merger Agreement. The final decision of the arbitrator shall be furnished to the Indemnity Representative, RealNetworks and the Escrow Agent in writing and shall constitute the conclusive determination of the issue in question binding upon the Indemnity Representative, RealNetworks and the Escrow Agent, and shall not be contested by any of them. The Escrow Agent Such decision may be used in a court of law only for the purpose of seeking enforcement of the arbitrator's decision.
(B) All of the fees and expenses of the arbitrator shall be paid by RealNetworks; provided, however, that if RealNetworks is the prevailing party in the arbitration, such fees and expenses shall be treated as "Damages" and RealNetworks shall be entitled to rely on any recover the amount of such memorandum fees and make distributions expenses from the Escrow Fund Shares in accordance with the terms thereofprovisions of this Agreement and the Escrow Agreement. For purposes of this Agreement and the Escrow Agreement, the prevailing party shall be that party in whose favor final judgment is rendered or who substantially prevails, if both parties are awarded judgment.
(dC) If no such agreement can be reached after good faith negotiation In the event the prevailing party is the Indemnity Representative, the reasonable fees (including reasonable attorneys' fees) and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative or the Indemnified Party may demand arbitration expenses of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event the matter Indemnity Representative shall be settled paid by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative and the Indemnified PartyRealNetworks. In the event thatthe prevailing party is RealNetworks, within thirty then (30i) calendar days to the extent that there shall be Escrow Shares remaining after submission satisfaction of any dispute to arbitrationthe particular Damage, the Shareholder Representative reasonable fees and expenses of RealNetworks and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Indemnity Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.
(e) Any such arbitration shall be held in the County of New Yorkpaid by RealNetworks; provided, New Yorkhowever, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all that such fees and expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator treated as "Damages" and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent RealNetworks shall be entitled to rely on, recover the amount of such fees and make distributions expenses from the Escrow Fund Shares in accordance withwith the Escrow Agreement, or (ii) to the terms extent that there shall not be Escrow Shares remaining sufficient to satisfy the payment of such awardreasonable fees and expenses, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision such portion of the arbitrator requiring payment fees and expenses as shall deplete the remaining Escrow Shares shall be treated as "Damages," with the balance paid by one Party to another, such Party shall make the payment to such other Party, including any distributions out of the Escrow Fund, as applicableRealNetworks.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
Appears in 1 contract
Samples: Merger Agreement (Realnetworks Inc)
Indemnification Claims Procedures. (a) An Indemnified Party may make an indemnification claim for indemnifiable Losses pursuant to Section 8.2 9.2(a) or Section 9.2(b) by delivering a written certificate (an a “Officer’s Claim Certificate”) ), to the Shareholder Representative, with a copy to the R&W Insurer (if and to the extent that such Losses are or would reasonably be expected to be covered by the R&W Insurance Policy) and the Escrow AgentAgent (if and to the extent that the Indemnified Party is or may seek recourse against the Indemnification Escrow Fund), and to one or more Indemnifying Parties (if and to the extent that the Indemnified Party is seeking recourse directly against any such Indemnifying Party or Indemnifying Parties), (i) stating that an Indemnified Party has paid, sustained, suffered or incurred (or in good faith reasonably anticipates that it will have to pay, sustain, suffer or incur) indemnifiable Losses, and (ii) specifying in reasonable detail the individual items and amounts of indemnifiable Losses included (to the extent known), and (iii) a description, in the aggregate amount reasonable detail, of the Losses being claimedfacts, the date each circumstances or events giving rise to such item was paidalleged indemnifiable Losses, sustained, suffered, incurred or accrued, or including (A) the basis for such anticipated liability, and, if applicable, liability and the nature of the misrepresentation, breach of warranty or covenant to which such item is relatedLosses relate, (B) the identity of any third party claimant (if any) and (C) copies of any formal demand or complaint from any third party claimant (if any); provided, however, that the Claim Certificate may be updated and amended from time to time by the Indemnified Party by delivering an updated or amended Claim Certificate. The Escrow Agent Claim Certificate shall not be required to make any assessment delivered by the Indemnified Party reasonably promptly after such Indemnified Party becomes aware of the foregoing Officer’s existence of a claim; provided, however, that no delay on the part of an Indemnified Party in delivering a Claim Certificate shall relieve any Indemnifying Party from any of its obligations under this ARTICLE IX unless (and shall be able then only to rely conclusively upon its contentthe extent that) the Indemnifying Party is materially prejudiced thereby in terms of any defense or claim available to the Indemnifying Party or the amount of Losses for which the Indemnifying Party is obligated to indemnify the Indemnified Parties.
(b) Following its receipt of an Officer’s a Claim Certificate, the Shareholder Representative shall have thirty (30) 45 calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an a “Claim Objection Notice”) to the Indemnified Party submitting such Officer’s Certificate at the address of such Indemnified Party set forth in such Officer’s CertificateBuyer, with a copy to the R&W Insurer (if and to the extent that such Losses are or would reasonably be expected to be covered by the R&W Insurance Policy) and the Escrow AgentAgent (if and to the extent that the Indemnified Party is or may seek recourse against the Indemnification Escrow Fund in connection with Section 9.2(a) or Section 9.2(b)). In the event that the Shareholder Representative shall fail to object, pursuant to this Section 8.5(b9.4(b), to any item or amount indemnifiable Losses set forth in an Officer’s a Claim Certificate within the foregoing thirty (30) calendar-45 calendar day period, the Shareholder Representative shall be deemed to have irrevocably agreed and consented (for and on behalf of the Indemnifying Parties) to such item or amountnon-objected indemnifiable Losses (“Deemed Losses”). Upon the expiration of such thirty (30) calendar-45 calendar day period, if Indemnified Party and Representative shall recover the Shareholder Deemed Losses from the R&W Insurance Policy, to the extent applicable. If any portion of the Deemed Losses is not covered by the R&W Insurance Policy or otherwise remains unpaid under the R&W Insurance Policy, Buyer and the Representative has failed shall, unless such amount was set-off by the Buyer out of any Earnout Consideration (subject to provide an Objection Noticethe set-off conditions in this Agreement), deliver to the Escrow Agent shall joint written instructions requiring the Escrow Agent to promptly release from the Indemnification Escrow Fund and deliver to the Indemnified Party that has previously delivered the Officer’s Certificate only Buyer an amount of cash equal to such unpaid portion of the Deemed Losses, and, (i) if the claim set forth in such Claim Certificate is for an IP Claim, Special Claim, Additional Claim, a Fundamental Claim, Additional Fundamental Claim or a Company Fraud Claim, and the unpaid portion of the Deemed Losses relating thereto exceed the amount remaining in the Indemnification Escrow Fund and available for set-off by the Buyer out of any item(s) and amount(s) that Earnout Consideration, then subject to the Shareholder Representative is deemed limitations of this ARTICLE IX, the Indemnifying Parties shall promptly cause to have accepted be paid to Buyer or the other applicable Indemnified Party an amount equal to such excess (up to the maximum indemnifiable amount pursuant to Section 9.3), in any case, which shall be paid in satisfaction of such Deemed Losses or (ii) if the claim set forth in such Claim Certificate is for a Company Securityholder Fraud Claim, Company Securityholder Fundamental Claim or Company Securityholder Covenant Claims, and the unpaid portion of the Deemed Losses relating thereto exceed the amount remaining in the Indemnification Escrow Fund that is attributable to applicable Responsible Indemnifying Party’s Pro Rata Share thereof, subject to the limitations of this ARTICLE IX, the Responsible Indemnifying Party shall promptly cause to be paid to (unless such amount was set-off by the Buyer out of any Earnout Consideration (as permitted under Section 8.5(b9.2(f)) Buyer or the applicable Indemnified Party an amount equal to the Deemed Losses in excess of the balance of the Indemnification Escrow Fund on such date (up to the maximum indemnifiable amount pursuant to Section 9.3).
(c) In the event that the Shareholder Representative shall object, delivers a Claim Objection Notice pursuant to Section 8.5(b9.4(b) hereof, hereof as to any item(s) or amount(s) set forth in any Officer’s Claim Certificate, the Shareholder Representative and the Buyer, on behalf of all Indemnified Party Parties, shall attempt in good faith to agree upon the rights of the respective Parties parties with respect to each of such claimsclaims objected to in such Claim Objection Notice for a period of 30 days after delivery of the Claim Objection Notice by the Representative. If the Shareholder Representative Buyer, on behalf of all Indemnified Parties, and the Indemnified Party Representative should so agree, a written memorandum setting forth such agreement shall be prepared and signed by both Parties Buyer and the Representative and, in the case of a claim in whole or in part against the R&W Insurance Policy Indemnified Party and Representative shall recover agreed indemnifiable Losses amounts from the R&W Insurance Policy, to the extent applicable. If any portion of such agreed indemnifiable Losses is not covered by the R&W Insurance Policy or otherwise remains unpaid under the R&W Insurance Policy, such agreement and details of the remaining unpaid amount under R&W Insurance Policy, shall be furnished to the Escrow Agent. The Agent to promptly release from the Indemnification Escrow Agent Fund and deliver to Buyer or the applicable Indemnified Party an amount of cash equal to the unpaid portion of the indemnifiable Losses so agreed and, (i) if the claim that is the subject of such written memorandum is for an IP Claim, Special Claim, Additional Claim, Fundamental Claim, Additional Fundamental Claim or a Company Fraud Claim, and the unpaid portion of the agreed indemnifiable Losses relating thereto exceed the amount remaining in the Indemnification Escrow Fund, subject to the limitations of this ARTICLE IX, the Indemnifying Parties shall promptly cause to be paid to (unless such amount was set-off by the Buyer out of any Earnout Consideration (as permitted under Section 9.2(e))) Buyer or the other applicable Indemnified Party an amount equal to the unpaid portion of the agreed indemnifiable Losses in excess of the balance of the Indemnification Escrow Fund on such date (up to the maximum indemnifiable amount pursuant to Section 9.3), in any case, which shall be entitled to rely on any paid in satisfaction of such memorandum unpaid portion of the agreed indemnifiable Losses or (ii) if the claim set forth in such Claim Certificate is for a Company Securityholder Fraud Claim, Company Securityholder Fundamental Claim or Company Securityholder Covenant Claim, and make distributions from the unpaid portion of the agreed indemnifiable Losses relating thereto exceed the amount remaining in the Indemnification Escrow Fund that is attributable to applicable Responsible Indemnifying Party’s Pro Rata Share thereof, subject to the limitations of this ARTICLE IX, the Responsible Indemnifying Party shall promptly cause to be paid to (unless such amount was set-off by the Buyer out of any Earnout Consideration (as permitted under Section 9.2(e))) Buyer or the applicable Indemnified Party an amount equal to the unpaid portion of the agreed indemnifiable Losses in accordance with excess of the terms thereofbalance of the Indemnification Escrow Fund on such date (up to the maximum indemnifiable amount pursuant to Section 9.3), which shall be paid in satisfaction of such unpaid portion of the agreed indemnifiable Losses.
(d) If no such agreement can Should Buyer and the Representative be reached after good faith negotiation and prior unable to thirty (30) calendar days after delivery of an agree as to any particular item or items or Loss or Losses specified in the Claim Objection NoticeNotice within the time periods specified in Section 9.4(c), either the Shareholder Representative or then the Indemnified Party may demand arbitration shall recover the Losses specified in the Claim Objection Notice from the R&W Insurance Policy, to the extent applicable. If any portion of the matter unless Losses specified in the amount Claim Objection Notice is not covered by the R&W Insurance Policy or otherwise remains unpaid under the R&W Insurance Policy, the Buyer and the Representative, shall act to resolve the dispute, with respect to any portion of the Loss Losses specified in the Claim Objection Notice which were not paid under the R&W Insurance Policy in accordance with Section 11.11, Upon receipt of such arbitration award setting forth the resolution of such dispute, then, if requested by Xxxxx, Buyer and the Representative shall deliver to the Escrow Agent, within three (3) Business Days following receipt, joint written instructions executed by both such parties instructing the Escrow Agent to distribute to Buyer or the applicable Indemnified Party, out of the Indemnification Escrow Fund, an amount equal to the indemnifiable Losses so determined, and (i) if the claim that is at issue is the subject of such written memorandum is for an IP Claim, Special Claim, Additional Claim, a pending litigation with Fundamental Claim, Additional Fundamental Claim or a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative and the Indemnified Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.
(e) Any such arbitration shall be held in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitratorCompany Fraud Claim, and the Escrow Agent shall be entitled to rely on, and make distributions from indemnifiable Losses so determined exceed the Escrow Fund amount remaining in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator requiring payment by one Party to another, such Party shall make the payment to such other Party, including any distributions out of the Indemnification Escrow Fund, as applicable.
subject to the limitations of this ARTICLE IX, the Indemnifying Parties shall promptly cause to be paid to (f) Judgment upon any award rendered unless such amount was set-off by the arbitrator may be entered Buyer out of any Indemnification Earnout Consideration (as permitted under Section 9.2(e))) Buyer or the applicable Indemnified Party an amount equal to the indemnifiable Losses so determined in excess of the balance of the Indemnification Escrow Fund on such date (up to the maximum indemnifiable amount pursuant to Section 9.3), in any court having jurisdictioncase, including which shall be paid in satisfaction of such indemnifiable Losses so determined or (ii) if the courts claim set forth in such Claim Certificate is for a Company Securityholder Fraud Claim, Company Securityholder Fundamental Claim or Company Securityholder Covenant Claims, and the indemnifiable Losses so determined exceed the amount remaining in the Indemnification Escrow Fund that is attributable to applicable Responsible Indemnifying Party’s Pro Rata Share thereof, subject to the limitations of this ARTICLE IX, the Responsible Indemnifying Party shall promptly cause to be paid to (unless such amount was set-off by the Buyer out of any Earnout Consideration (as permitted under Section 9.2(e))) Buyer or the applicable Indemnified Party an amount equal to the indemnifiable Losses so determined in excess of the County balance of New Yorkthe Indemnification Escrow Fund on such date (up to the maximum indemnifiable amount pursuant to Section 9.3), State which shall be paid in satisfaction of New York or the country of Swedensuch indemnifiable Losses so determined.
Appears in 1 contract
Indemnification Claims Procedures. All claims for indemnification by any party seeking indemnification (the "Indemnified Party") from another party (the "Indemnifying Party") under Sections 10.1, 10.2, and 10.3 shall be asserted and resolved as follows:
(a) An In the event that any claim or demand for which the Indemnifying Party would be liable to any Indemnified Party may make an indemnification claim pursuant hereunder is notified to Section 8.2 by delivering a certificate (an “Officer’s Certificate”) or sought to the Shareholder Representative, with a copy to the Escrow Agent, (i) stating that an be collected from any Indemnified Party has paidby a third party, sustainedthe Indemnified Party shall promptly notify (and, suffered or incurred where the matter relates to Taxes, if practicable in adequate time to enable any appeal to be made) the Indemnifying Party (or reasonably anticipates that it will have to pay, sustain, suffer or incurand any known pertinent insurance carrier) Losses, and (ii) specifying in reasonable detail of such claim or demand and the individual items of Losses included in the aggregate amount of the Losses being claimed, the date each such item was paid, sustained, suffered, incurred or accrued, or the basis for such anticipated liability, and, if applicable, estimated amount thereof to the nature of the misrepresentation, breach of warranty or covenant to extent then feasible (which such item is related. The Escrow Agent estimate shall not be required to make any assessment conclusive of the foregoing Officer’s Certificate final amount of such claim and shall be able to rely conclusively upon its content.
demand) (b) Following receipt of an Officer’s Certificate, the Shareholder Representative "Claim Notice"). The Indemnifying Party shall have thirty (30) calendar days to object to any item(s) from the personal delivery or amount(s) set forth therein by delivering written notice thereof mailing of the Claim Notice (an “Objection Notice”the "Notice Period") to notify the Indemnified Party submitting such Officer’s Certificate at whether or not the address of such Indemnifying Party desires to defend the Indemnified Party set forth against such claim or demand. All costs and expenses incurred by the Indemnifying Party in defending such Officer’s Certificateclaim or demand shall be a liability of, with a copy to and shall be paid by, the Escrow AgentIndemnifying Party. In the event that the Shareholder Representative shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Certificate within the foregoing thirty (30) calendar-day period, the Shareholder Representative shall be deemed to have irrevocably agreed and consented to such item or amount. Upon the expiration of such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand and except as hereinafter provided, the Indemnifying Party shall have the right to defend the Indemnified Party by counsel of the Indemnifying Party's own choosing, either in the Indemnifying Party's name, or the Indemnified Party's name by appropriate proceedings. If any Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense and, in any event, the Indemnified Party shall cooperate with the Indemnifying Party and such counsel. To the extent the Indemnifying Party shall control or participate in the defense or settlement of any third party claim or demand, the Indemnified Party shall give to the Indemnifying Party and its counsel access to, during normal business hours, the relevant business records and other documents, and shall permit them to consult with the employees and counsel of the Indemnified Party to the extent consistent with the application of relevant evidentiary privileges. The Indemnifying Party shall keep the Indemnified Party reasonably apprised of the course of any negotiations or proceedings and the Indemnifying Party shall not settle any claim or demand without the consent of the affected Indemnified Party, which consent shall not be unreasonably withheld or unduly delayed. As soon as reasonably practicable after the Indemnifying Party has previously delivered reached a final decision as to whether or not all or any portion of the Officer’s Certificate only an amount obligations related to such claim or demand are obligations for which the Indemnifying Party is required to indemnify such Indemnified Party hereunder and, in any event, prior to entering into any such settlement or other final resolution of cash equal any claim or demand, the Indemnifying Party shall notify the Indemnified Party in writing of its position as to whether or not all or any item(sportion of the obligations related to such claim or demand are obligations for which the Indemnifying Party is required to indemnify such Indemnified Party in accordance with this Article X.
(b) and amount(s) that If the Shareholder Representative Indemnifying Party elects or is deemed to have accepted pursuant elected not to this Section 8.5(b).
(c) In take over the event that the Shareholder Representative shall objectdefense of any such claim or demand, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Certificate, the Shareholder Representative and the Indemnified Party shall attempt in good faith have the right to agree upon the rights of the respective Parties with respect to each of defend, compromise and settle such claims. If the Shareholder Representative and claim or demand on such terms as the Indemnified Party should so agreein his discretion may determine, a memorandum setting forth such agreement shall be prepared and signed by both Parties and shall be furnished subject to the Escrow Agent. The Escrow Agent prior consent of the Indemnifying Party, which consent shall not be entitled unreasonably withheld or unduly delayed, and the Indemnifying Party shall continue to rely on any such memorandum and make distributions from be bound to indemnify the Escrow Fund Indemnified Party in accordance with the terms thereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative or the Indemnified Party may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative and the Indemnified Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.
(e) Any such arbitration shall be held in the County of New York, New York, New York, extent provided under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator requiring payment by one Party to another, such Party shall make the payment to such other Party, including any distributions out of the Escrow Fund, as applicable.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.this
Appears in 1 contract
Indemnification Claims Procedures. All claims for indemnification by any party seeking indemnification (the "Indemnified Party") from another party (the "Indemnifying Party") under Sections 10.1 and 10.2 shall be asserted and resolved as follows:
(a) An In the event that any claim or demand for which the Indemnifying Party would be liable to any Indemnified Party may make an indemnification claim pursuant hereunder is asserted against or sought to Section 8.2 by delivering a certificate (an “Officer’s Certificate”) to the Shareholder Representative, with a copy to the Escrow Agent, (i) stating that an be collected from any Indemnified Party has paidby a third party, sustained, suffered or incurred the Indemnified Party shall promptly notify the Indemnifying Party (or reasonably anticipates that it will have to pay, sustain, suffer or incurand any known pertinent insurance carrier) Losses, and (ii) specifying in reasonable detail of such claim or demand and the individual items of Losses included in the aggregate amount of the Losses being claimed, the date each such item was paid, sustained, suffered, incurred or accrued, or the basis for such anticipated liability, and, if applicable, estimated amount thereof to the nature of the misrepresentation, breach of warranty or covenant to extent then feasible (which such item is related. The Escrow Agent estimate shall not be required to make any assessment conclusive of the foregoing Officer’s Certificate final amount of such claim and shall be able to rely conclusively upon its content.
demand) (b) Following receipt of an Officer’s Certificate, the Shareholder Representative "Claim Notice"). The Indemnifying Party shall have thirty (30) calendar days to object to any item(s) from the personal delivery or amount(s) set forth therein by delivering written notice thereof mailing of the Claim Notice (an “Objection Notice”the "Notice Period") to notify the Indemnified Party submitting such Officer’s Certificate at whether or not the address of such Indemnifying Party desires to defend the Indemnified Party set forth against such claim or demand. All costs and expenses incurred by the Indemnifying Party in defending such Officer’s Certificateclaim or demand shall be a liability of, with a copy to and shall be paid by, the Escrow AgentIndemnifying Party. In the event that the Shareholder Representative shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Certificate within the foregoing thirty (30) calendar-day period, the Shareholder Representative shall be deemed to have irrevocably agreed and consented to such item or amount. Upon the expiration of such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand and except as hereinafter provided, the Indemnifying Party shall have the right to defend the Indemnified Party by counsel of the Indemnifying Party's own choosing, either in the Indemnifying Party's name, or the Indemnified Party's name by appropriate proceedings. If any Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense and, in any event, the Indemnified Party shall cooperate with the Indemnifying Party and such counsel. To the extent the Indemnifying Party shall control or participate in the defense or settlement of any third party claim or demand, the Indemnified Party shall give to the Indemnifying Party and its counsel access to, during normal business hours, the relevant business records and other documents, and shall permit them to consult with the employees and counsel of the Indemnified Party to the extent consistent with the application of relevant evidentiary privileges. The Indemnifying Party shall keep the Indemnified Party reasonably apprised of the course of any negotiations or proceedings and the Indemnifying Party shall not settle any claim or demand without the consent of the affected Indemnified Party, which consent shall not be unreasonably withheld or unduly delayed. As soon as reasonably practicable after the Indemnifying Party has previously delivered reached a final decision as to whether or not all or any portion of the Officer’s Certificate only an amount obligations related to such claim or demand are obligations for which the Indemnifying Party is required to indemnify such Indemnified Party hereunder and, in any event, prior to entering into any such settlement or other final resolution of cash equal any claim or demand, the Indemnifying Party shall notify the Indemnified Party in writing of its position as to whether or not all or any item(sportion of the obligations related to such claim or demand are obligations for which the Indemnifying Party is required to indemnify such Indemnified Party in accordance with this Article X.
(b) and amount(s) that If the Shareholder Representative Indemnifying Party elects or is deemed to have accepted pursuant elected not to take over the defense of any such claim or demand, the Indemnified Party shall have the right to defend, compromise and settle such claim or demand on such terms as the Indemnified Party in his, her or its discretion may determine, subject to the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld or unduly delayed, and the Indemnifying Party shall continue to be bound to indemnify the Indemnified Party in accordance with and to the extent provided under the terms of this Section 8.5(b)Article X. The Indemnified Party shall or shall direct in writing its counsel to deliver to the Indemnifying Party copies of all correspondence and other matters relating to such claim or demand. Notwithstanding the foregoing, to the extent that the claim or demand involves or could result in claims against, or potential liability of, the Indemnifying Party the extent or nature of which were not known by the Indemnifying Party as of the date the Indemnifying Party elects or is deemed to have elected not to take over the defense of such claim or demand, the Indemnifying Party shall, by written notice to the Indemnified Party, be entitled to take over the defense of such claim or demand.
(c) In the event that an Indemnified Party should have a claim against the Shareholder Representative shall objectIndemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Certificate, the Shareholder Representative and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective Parties promptly send a Claim Notice with respect to each of such claims. If the Shareholder Representative and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and shall be furnished claim to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereofIndemnifying Party.
(d) If no such agreement can be reached after good faith negotiation and prior The Indemnified Party's failure to thirty (30) calendar days after delivery give reasonably prompt notice to the Indemnifying Party of any actual, threatened or possible claim or demand which may give rise to a right of indemnification hereunder shall not relieve the Indemnifying Party of any liability which it may have to an Objection Notice, either the Shareholder Representative or the Indemnified Party may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable except to the Shareholder Representative and extent the Indemnified failure to give such notice prejudiced the Indemnifying Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.
(e) Any such arbitration shall be held in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator requiring payment by one Party to another, such Party shall make the payment to such other Party, including any distributions out of the Escrow Fund, as applicable.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
Appears in 1 contract
Indemnification Claims Procedures. All claims for indemnification by any party seeking indemnification (the "Indemnified Party") from another party (the "Indemnifying Party") under Sections 7.1 or 7.2 shall be asserted and resolved as follows:
(a) An In the event that any claim or demand for which the Indemnifying Party would be liable to any Indemnified Party may make an indemnification claim pursuant hereunder is asserted against or sought to Section 8.2 by delivering a certificate (an “Officer’s Certificate”) to the Shareholder Representative, with a copy to the Escrow Agent, (i) stating that an be collected from any Indemnified Party has paidby a third party, sustained, suffered or incurred (or reasonably anticipates that it will have to pay, sustain, suffer or incur) Losses, and (ii) specifying the Indemnified Party shall promptly notify the Indemnifying Party in reasonable detail of such claim or demand and the individual items of Losses included in the aggregate amount of the Losses being claimed, the date each such item was paid, sustained, suffered, incurred or accrued, or the basis for such anticipated liability, and, if applicable, estimated amount thereof to the nature of the misrepresentation, breach of warranty or covenant to extent then feasible (which such item is related. The Escrow Agent estimate shall not be required to make any assessment conclusive of the foregoing Officer’s Certificate final amount of such claim and shall be able to rely conclusively upon its content.
demand) (b) Following receipt of an Officer’s Certificate, the Shareholder Representative "Claim Notice"). The Indemnifying Party shall have thirty (30) calendar days to object to any item(s) from the personal delivery or amount(s) set forth therein by delivering written notice thereof mailing of the Claim Notice (an “Objection Notice”the "Notice Period") to notify the Indemnified Party submitting such Officer’s Certificate at whether or not the address of such Indemnifying Party desires to defend the 30 Indemnified Party set forth against such claim or demand. All costs and expenses incurred by the Indemnifying in defending such Officer’s Certificateclaim or demand shall be a liability of, with a copy to and shall be paid by, the Escrow AgentIndemnifying Party. In the event that the Shareholder Representative shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Certificate within the foregoing thirty (30) calendar-day period, the Shareholder Representative shall be deemed to have irrevocably agreed and consented to such item or amount. Upon the expiration of such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand and except as hereinafter provided, the Indemnifying Party shall have the right to shall have the right to defend the Indemnified Party by counsel of the Indemnifying Party's own choosing, either in Indemnifying Party's name, or the Indemnified Party's name by appropriate proceedings. If any Indemnified party desires to participate in, but not control, any such defense or settlement, it may do so at its sole cost and expense and, in any event, the Indemnified Party shall cooperate with the Indemnifying Party and such counsel. To the extent the Indemnifying Party shall control or participate in the defense or settlement of any third party claim or demand, the Indemnified Party shall give to the Indemnifying Party and its counsel access to, during normal business hours, the relevant business records and other documents, and shall permit them to consult with the employees and counsel of the Indemnified Party, to the extent consistent with the application of relevant evidentiary privileges. The Indemnifying Party shall keep the Indemnified Party reasonably apprised of the course of any negotiations or proceedings and the Indemnifying Party shall not settle any claim or demand without the consent of the affected Indemnified Party, which consent shall not be unreasonably withheld or unduly delayed. As soon as reasonably practicable after the Indemnifying Party has previously delivered reached a final decision as to whether or not all or any portion of the Officer’s Certificate only an amount obligations related to such claim or demand are obligations for which the Indemnifying Party is required to indemnify such Indemnified Party hereunder and, in any event, prior to entering into any such settlement or other final resolution of cash equal any claim or demand, the Indemnifying Party shall notify the Indemnified Party in writing of its position as to whether or not all or any item(sportion of the obligations related to such claim or demand are obligations for which the Indemnifying Party is required to indemnify such Indemnified Party in accordance with this Article X.
(b) and amount(s) that If the Shareholder Representative Indemnifying Party elects or is deemed to have accepted pursuant elected not to take over the defense of any such claim or demand, the Indemnified Party shall have the right to defend, compromise and settle such claim or demand on such terms as the Indemnified Party in their discretion may determine, subject to the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld or unduly delayed, and the Indemnifying Party shall continue to be bound to indemnify the Indemnified Party in accordance with and to the extent provided under the terms of this Section 8.5(b)Article VII. The Indemnified Party shall or shall direct in writing its counsel to deliver to the Indemnifying Party copies of all correspondence and other matters relating to such claim or demand. Notwithstanding the foregoing, to the extent that the claim or demand involves or could result in claims against, or potential liability of, the Indemnifying Party the extent or nature of which were not known by the Indemnifying Party as of the date the Indemnifying Party elects or is deemed to have elected not to take over the defense of such claim or demand, the Indemnifying Party shall, by written notice to the Indemnified Party, be entitled to take over the defense of such claim or demand.
(c) In in the event that an Indemnified Party should have a claim against the Shareholder Representative shall objectIndemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Certificate, the Shareholder Representative and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective Parties promptly send a Claim Notice with respect to each of such claims. If the Shareholder Representative and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and shall be furnished claim to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereofIndemnifying Party.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative or the Indemnified Party may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative and the Indemnified Party. In 's failure to give reasonably prompt notice to the event that, within thirty (30) calendar days after submission Indemnifying Party of any dispute actual, threatened or possible claim or demand which may give rise to arbitration, a right of indemnification hereunder shall not relieve the Shareholder Representative and the Indemnifying Party of any liability which it may have to an Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.
(e) Any such arbitration shall be held in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating except to the arbitration shall be paid, including extent the respective expenses of each failure to give such notice prejudiced the Indemnifying Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator requiring payment by one Party to another, such Party shall make the payment to such other Party, including any distributions out of the Escrow Fund, as applicable.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
Appears in 1 contract
Indemnification Claims Procedures. (a) An Indemnified Party may make an indemnification claim pursuant to Section 8.2 by delivering a certificate (an “Officer’s Certificate”) to Promptly following the Shareholder Representative, with a copy to the Escrow Agent, (i) stating that an Indemnified Party has paid, sustained, suffered or incurred (or reasonably anticipates that it will have to pay, sustain, suffer or incur) Losses, and (ii) specifying in reasonable detail the individual items of Losses included in the aggregate amount of the Losses being claimed, the date each such item was paid, sustained, suffered, incurred or accrued, or the basis for such anticipated liability, and, if applicable, the nature of the misrepresentation, breach of warranty or covenant to which such item is related. The Escrow Agent shall not be required to make any assessment of the foregoing Officer’s Certificate and shall be able to rely conclusively upon its content.
(b) Following receipt of an Officer’s Certificatenotice by the Petopia Indemnitees of a Third Party Claim which the Petopia Indemnitees believe may result in a demand against the Escrow, Petopia shall notify the Shareholder Representative shall have thirty (30) calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an “Objection Notice”) to the Indemnified Party submitting such Officer’s Certificate at the address Stockholders of such Indemnified Party set forth in such Officer’s Certificate, with a copy to the Escrow Agent. In the event that the Shareholder Representative shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Certificate within the foregoing thirty (30) calendar-day period, the Shareholder Representative shall be deemed to have irrevocably agreed and consented to such item or amount. Upon the expiration of such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to the Indemnified Party that has previously delivered the Officer’s Certificate only an amount of cash equal to any item(s) and amount(s) that the Shareholder Representative is deemed to have accepted pursuant to this Section 8.5(b).
(c) In the event that the Shareholder Representative shall object, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Certificate, the Shareholder Representative and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective Parties with respect to each of such claims. If the Shareholder Representative and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund claim in accordance with the terms thereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative or the Indemnified Party may demand arbitration provisions of the matter unless Escrow Agreement. Promptly following the amount receipt of notice by the Stockholder Indemnitees of a Third Party Claim which the Stockholder Indemnitees believe may result in a demand for indemnification pursuant to Section 7.4 hereof, the Stockholders shall notify Petopia of such claim. The party receiving the notice of the Loss that is at issue is Third Party Claim shall notify the subject other party hereto of a pending litigation with a third party, in which event arbitration such Third Party Claim. The failure to give such notice shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event relieve the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable Indemnifying Party of its obligations under this Agreement except to the Shareholder Representative and extent that the Indemnified Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Indemnifying Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide is substantially prejudiced as a list of ten (10) potential arbitrators with relevant industry experience, from which list each result of the Shareholder Representative and the Indemnified Party may strike up failure to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.
(e) Any give such arbitration shall be held in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicablenotice. Within fifteen (15) calendar business days after receipt of the notice by the Indemnifying Party pursuant to the preceding sentence, the Indemnifying Party shall notify the Indemnified Party whether it elects to control the defense of the Third Party Claim. If the Indemnifying Party elects to undertake the defense of such Third Party Claim, it shall do so at its own expense with counsel of its own choosing and it shall acknowledge in writing without qualification its indemnification obligations as provided in this Agreement to the Indemnified Party as to such Third Party Claim. If the Indemnifying Party elects not to defend the Third Party Claim or fails to pursue such Third Party Claim diligently, the Indemnified Party shall have the right to undertake, conduct and control the defense of such Third Party Claim through counsel of its own choosing; provided that where the Indemnified Party is the Company, Petopia shall reimburse the Company for any expenses arising out of such defense in cash or Petopia Series E Preferred Stock. The party that litigates or contests the Third Party Claim shall keep the other party fully advised of the progress and disposition of such claim.
(b) In the event the Indemnifying Party elects not to undertake the defense of the Third Party Claim or fails to pursue diligently the defense of such a claim and the Indemnified Party litigates or otherwise contests or settles the Third Party Claim, then, provided that a final determination has been made that the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall promptly reimburse the Indemnified Party for all amounts paid to settle such claim or all amounts paid in satisfaction of a judgment against the Indemnified Party in contesting such claim and in providing its right to indemnification hereunder, all in accordance with the provisions of this Article VII. Notwithstanding the foregoing, no settlement of any Third Party Claim without the prior written consent of the Indemnifying Party shall be determinative of the validity of any claim that the Indemnified Party is entitled to indemnification hereunder.
(c) No Third Party Claim will be settled by the Indemnifying Party without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld; provided, however, that if such claim asserts that the Indemnifying Party is jointly and severally liable and the Indemnified Party shall be fully released from all liability relating to such Third Party Claim in connection with such settlement, the Indemnifying Party shall not be required to obtain the consent of the Indemnified Party. If, however, the Indemnified Party refuses to consent to a bona fide offered settlement which the Indemnifying Party wishes to accept, the Indemnified Party may continue to pursue such Third Party Claim free of any participation by the Indemnifying Party, at the sole expense of the Indemnified Party. In such event, the Indemnifying Party shall pay to the Indemnified Party the amount of the offer of settlement which the Indemnified Party refused to accept, plus the costs and expenses incurred by the Indemnified Party prior to the date the Indemnifying Party notifies the Indemnified Party of the offer of settlement, all in accordance with the terms of this Article VII, and, upon the payment or receipt of such amount, as the case may be, the Indemnifying Party shall have no further liability with respect to such Third Party Claim. The Indemnifying Party shall be entitled to recover from the Indemnified Party any additional expenses incurred by such Indemnifying Party as a result of the decision of the arbitrator requiring payment by one Indemnified Party to another, such Party shall make pursue the payment to such other Party, including any distributions out of the Escrow Fund, as applicablematter.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
Appears in 1 contract
Samples: Merger Agreement (Petopia Com Inc)
Indemnification Claims Procedures. (a) An With respect to Section 10.2(a), any Indemnified Party Parties may make an indemnification claim pursuant to Section 8.2 10.2(a) by delivering a certificate (an a “Officer’s Claim Certificate”) to the Shareholder Representative, with a copy to the Escrow AgentAgent (if and to the extent that the Indemnified Parties are seeking recourse against the Escrow Fund), (i) stating that an Indemnified Party has paid, sustained, suffered or incurred (or reasonably anticipates that it will have to pay, sustain, suffer or incur) Losses, and (ii) specifying setting forth in reasonable detail (based on information then readily available to the individual items of Losses included in the aggregate amount of the Losses being claimed, the date each such item was paid, sustained, suffered, incurred or accrued, or Indemnified Party) the basis for such anticipated liability, and, if applicableindemnification and to the extent readily ascertainable, the nature of the misrepresentation, breach of warranty or covenant to which such item is related. The Escrow Agent shall not be required to make any assessment of the foregoing Officer’s Certificate and shall be able to rely conclusively upon its contentanticipated Losses.
(b) The Escrow Agent shall hold and safeguard the Escrow Fund during the Escrow Period, shall treat such fund as trust fund in accordance with the terms of this Agreement, and shall hold and dispose of the Escrow Fund only in accordance with the terms of this Agreement. Following its receipt of an Officer’s a Claim Certificate, the Shareholder Representative shall have thirty forty-five (3045) calendar days to object to any item(s) or amount(s) set forth therein Claim Certificate only if the Indemnified Party is not entitled to be indemnified and held harmless by the Indemnifying Parties and/or the Indemnified Party is not entitled to be indemnified for the amount of the Losses specified in the Claim Certificate by delivering written notice thereof of such objection, including an explanation of the basis for such objection in reasonable detail (an “Objection Notice”) to the Indemnified Party submitting such Officer’s Claim Certificate at the address addresses of such Indemnified Party set forth in such Officer’s Claim Certificate, with a copy to the Escrow AgentAgent (if and to the extent that the Indemnified Party is seeking recourse against the Escrow Fund in connection with Section 10.2(a)). In the event that the Shareholder Representative shall fail fails to object, pursuant to in accordance with this Section 8.5(b10.5(b), to any item on or amount set forth in an Officer’s before 11:59 p.m. Pacific time on the 45th calendar day following the date that the Claim Certificate within the foregoing thirty (30) calendar-day period, the Shareholder Representative shall be is deemed to have irrevocably agreed and consented to such item or amount. Upon the expiration of such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Noticebeen provided, the Escrow Agent shall promptly release from the Escrow Fund and deliver cause to the be delivered to any Indemnified Party Parties that has have previously delivered the Officer’s Claim Certificate only an amount of cash equal to any item(sthe lesser of (i) the amount then in the Escrow Fund and amount(s(ii) that the Shareholder aggregate amount to which the Representative is deemed failed to have accepted object pursuant to this Section 8.5(b)the Objection Notice.
(c) In the event that the Shareholder Representative shall object, pursuant to in accordance with Section 8.5(b) hereof10.5(b), to any item(s) or amount(s) set forth in any Officer’s Claim Certificate, the Shareholder Representative and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective Parties parties with respect to each of such claims. If the Shareholder Representative and the Indemnified Party should so agree, they shall promptly prepare and execute a memorandum setting forth such agreement shall be prepared and signed by both Parties and and, in the case of a claim against the Escrow Fund, shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereofhereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative or the Indemnified Party may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event neither the Representative nor the Indemnified Party shall commence arbitration shall not be commenced until such amount is ascertained or both Parties parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative and the Indemnified Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty fifteen (3015) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate each select one (1) of arbitrator. The two (2) arbitrators so selected shall select a third arbitrator, who shall have relevant industry experience, to conduct the remaining individuals to serve as the arbitratorarbitration.
(e) Any such arbitration shall be held in the County of New YorkAustin, New York, New York, Texas under the rules then in effect of the American Arbitration Association. The arbitrator arbitrator(s) shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Partyparty, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator or arbitrators, as the case may be, shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the Parties parties an opportunity, adequate in the sole judgment of the arbitrator or majority of the three arbitrators, as the case may be, to discover all relevant information from the opposing Parties parties about the subject matter of the dispute. The arbitrator arbitrator, or a majority of the three arbitrators, as the case may be, shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator arbitrators or a majority of the three arbitrators, as the case may be, determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator or a majority of the three arbitrators, as the case may be, as to the validity and amount of any claim in such Officer’s Claim Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of Representative, the Sellers) Indemnifying Parties and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitratorarbitrator(s). With respect to claims against the Escrow Fund, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator arbitrator(s) requiring payment by one Party a party to another, such Party party shall make the payment to such other Partyparty, including any distributions out of the Escrow Fund, as applicableFund with respect to Section 10.2(a).
(f) Judgment upon any award rendered by the arbitrator arbitrator(s) may be entered in any court having jurisdiction.
(g) Except with respect to Misrepresentation Matters, including the courts of foregoing arbitration provisions shall apply to any dispute among any Representative and/or the County of New YorkIndemnifying Parties, State of New York or on the country of Sweden.one hand, and the Indemnified Parties, on the other hand, under this ARTICLE X.
Appears in 1 contract
Samples: Merger Agreement (Bazaarvoice Inc)
Indemnification Claims Procedures. (a) An With respect to Section 8.2(a), any Indemnified Party Parties may make an indemnification claim pursuant to Section 8.2 8.2(a) by delivering a certificate (an a “Officer’s Claim Certificate”) to the Shareholder Stockholder Representative, with a copy to the Escrow AgentAgent (if and to the extent that the Indemnified Parties are seeking recourse against the Escrow Fund), and/or to one or more Company Securityholders (if and to the extent that the Indemnified Parties are seeking recourse directly against any such Company Securityholders and any of such parties also being referred to herein as the “Indemnifying Party”), promptly after becoming aware of such claim (i) stating that an such Indemnified Party has Parties have paid, sustained, suffered or incurred (or reasonably anticipates anticipate that it they will have to pay, sustain, suffer or incur) incur Losses, and (ii) specifying in reasonable detail the individual items of Losses included in the aggregate amount of the Losses being claimedso stated, if available, the date each such item was paid, sustained, sufferedsuffered or incurred, incurred or accruedif applicable, or the basis for such anticipated liability, and, if applicable, the nature of the misrepresentation, breach of warranty or covenant to which such item is related. The Escrow Agent failure of the Indemnified Party to exercise promptness in such notification shall not be required amount to make any assessment a waiver of such claim unless and to the extent that the resulting delay adversely prejudices the position of the foregoing Officer’s Certificate and shall be able Indemnifying Party with respect to rely conclusively upon its contentsuch claim.
(b) Following its receipt of an Officer’s a Claim Certificate, the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) shall have thirty (30) calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an “Objection Notice”) to the Indemnified Party Parties submitting such Officer’s Claim Certificate at the address addresses of such Indemnified Party Parties set forth in such Officer’s Claim Certificate, with a copy to the Escrow AgentAgent (if and to the extent that the Indemnified Parties are seeking recourse against the Escrow Fund in connection with Section 8.2(a)). In the event that the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Claim Certificate within the foregoing thirty (30) calendar-calendar day period, the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) shall be deemed to have irrevocably agreed and consented to each such item or amount. Upon With respect to claims against the Escrow Fund, upon the expiration of such thirty (30) calendar-day calendar day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to the any Indemnified Party Parties that has have previously delivered the Officer’s Claim Certificate only an amount of cash equal to any item(s) and amount(s) that the Shareholder Representative Indemnifying Party is deemed to have accepted pursuant to this Section 8.5(b).
(c) In the event that the Shareholder Representative an Indemnifying Party or Parties (as a single group, if applicable) shall object, pursuant to Section 8.5(b) hereof), to any item(s) or amount(s) set forth in any Officer’s Claim Certificate, the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) and the Indemnified Party Parties shall attempt in good faith to agree upon the rights of the respective Parties parties with respect to each of such claims. If the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) and the Indemnified Party Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and parties and, in the case of a claim against the Escrow Fund, shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereofhereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) or the Indemnified Party Parties may demand arbitration of pursue the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative and the Indemnified Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitratorremedies available under this Agreement.
(e) Any such arbitration shall be held in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator requiring payment by one Party to another, such Party shall make the payment to such other Party, including any distributions out of the Escrow Fund, as applicable.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
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Indemnification Claims Procedures. Each claim for indemnification by an Indemnified Party pursuant to the terms of this Article VIII shall be made only in accordance with this Section 8.5.
(a) An Indemnified Party may make an indemnification claim pursuant to Section 8.2 by delivering a certificate (an “Officer’s Certificate”) to the Shareholder Stockholder Representative, with a copy to the Escrow Agent, (i) stating that an Indemnified Party has paid, sustained, suffered or incurred (or reasonably anticipates that it will have to pay, sustain, suffer or incur) Lossesa Loss or a Specified Loss, and (ii) specifying in reasonable detail the individual items of Losses such Loss or Specified Loss included in the aggregate amount so stated, a description of the Losses being claimedevents or circumstances underlying the claim for indemnification, the estimated date each such item the Indemnified Party reasonably believes the Loss or Specified Loss was actually paid, sustained, suffered, incurred suffered or accruedincurred, or the basis for such anticipated liabilityLoss or Specified Loss, andthe specific representation, warranty or covenant alleged to have been breached, if applicable, and the nature of the misrepresentation, breach of warranty or covenant to which such item is related, if applicable. The Escrow Agent shall not Any such claim for indemnification hereunder must be required to make any assessment received by the Stockholder Representative no later than 5:00 p.m., Utah time, on the date of the foregoing Officer’s Certificate and shall be able to rely conclusively upon its contentexpiration of the applicable survival period set forth in Section 8.1(a).
(b) Following the receipt of an Officer’s Certificate, the Shareholder Representative Stockholder Representative, on behalf of the Effective Time Company Stockholders, shall have thirty (30) calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an “Objection Notice”) to the Indemnified Party submitting such Officer’s Certificate at the address of such Indemnified Party set forth in such Officer’s Certificate, with a copy to the Escrow AgentAgent if and to the extent that the Indemnified Party is seeking recourse against the Escrow Fund; provided, however, that the Stockholder Representative shall not be permitted to deliver an Objection Notice with respect to any Specified Losses. In the event that the Shareholder Stockholder Representative shall fail to object, pursuant to this Section 8.5(b), object to any item or amount set forth in an Officer’s Certificate by delivering to the Indemnified Party an Objection Notice within the foregoing thirty (30) calendar-calendar day period, the Shareholder Stockholder Representative shall be deemed to have irrevocably agreed and consented to each such item or amountamount on behalf of the Effective Time Company Stockholders. Upon the expiration of such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to the any Indemnified Party that has previously delivered the Officer’s Certificate only an amount of cash equal to any item(s) and amount(s) that the Shareholder Stockholder Representative is deemed to have accepted on behalf of the Effective Time Company Stockholders pursuant to this Section 8.5(b).
(c) In the event that the Shareholder Stockholder Representative shall object, pursuant to Section 8.5(b) hereof, have objected to any item(s) or amount(s) set forth in any Officer’s CertificateCertificate pursuant to Section 8.5(b), the Shareholder Stockholder Representative and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective Parties parties with respect to each of such claims. If the Shareholder Stockholder Representative and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and parties and, in the case of a claim against the Escrow Fund, shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Stockholder Representative or the Indemnified Party may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Stockholder Representative and the Indemnified PartyParty and not affiliated with either party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Stockholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty fifteen (3015) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Stockholder Representative and the Indemnified Party may strike up to three (3shall each select one arbitrator. The two arbitrators so selected shall select a third arbitrator who shall have relevant industry experience. The parties shall cooperate with one another in selecting a arbitrator(s) namesand in scheduling arbitration proceedings, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitratoract in good faith in such arbitration.
(e) Any such arbitration shall be held in the County of New YorkSan Francisco, New York, New YorkCalifornia, under the rules then in effect of the American Arbitration Association. The arbitrator arbitrator(s) shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Partyparty, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator or arbitrators, as the case may be, shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the Parties parties an opportunity, adequate in the sole judgment of the arbitrator or majority of the three arbitrators, as the case may be, to discover all relevant information from the opposing Parties parties about the subject matter of the dispute. The arbitrator arbitrator, or a majority of the three arbitrators, as the case may be, shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including reasonable attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator arbitrators or a majority of the three arbitrators, as the case may be, determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator or a majority of the three arbitrators, as the case may be, as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Stockholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitratorarbitrator(s), and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen thirty (1530) calendar days of a decision of the arbitrator arbitrator(s) requiring payment by one Party party to another, such Party party shall make the payment to such other Partyparty, including any distributions out of the Escrow Fund, as applicable.
(f) Judgment upon any award rendered by the arbitrator arbitrator(s) may be entered in any court having jurisdiction.
(g) The foregoing arbitration provisions shall apply to any dispute among the Stockholder Representative, including the courts on behalf of the County of New YorkEffective Time Company Stockholders, State of New York the Escrow Agent and the Indemnified Parties under this Article VIII, whether relating to claims upon the Escrow Fund or the country of Swedento any other indemnification obligations set forth in this Article VIII.
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Samples: Merger Agreement (Omniture, Inc.)
Indemnification Claims Procedures. (a) An Indemnified Party may make an indemnification claim for indemnifiable Losses pursuant to Section 8.2 9.2(a) that do not involve a Third-Party Claim by delivering a certificate (an “Officer’s Certificate”) written certificate, to the Shareholder Representative, with a copy to the Escrow Agent, Indemnifying Party (i) stating that an Indemnified Party has paid, sustained, suffered or incurred (or in good faith reasonably anticipates that it will have to pay, sustain, suffer or incur) indemnifiable Losses, and (ii) specifying in reasonable detail the individual items and amounts of indemnifiable Losses included (to the extent known), (iii) stating in reasonable detail the aggregate amount of facts and circumstances related to the Losses being claimed, the date each such item was paid, sustained, suffered, incurred or accrued, or claim and the basis for such anticipated liabilitytherefor, and, if applicable, the and (iv) nature of the misrepresentation, breach of warranty warranty, covenant or covenant claim (a “Claim Certificate”); provided, however, that the Claim Certificate may be updated to which reflect any change in circumstances from time to time by the Indemnified Party by delivering an updated or amended Claim Certificate, so long as such item is relatedupdate or amendment only asserts bases for Losses or amends the amount of Losses reasonably related to the underlying facts and circumstances specifically set forth in such original Claim Certificate. The Escrow Agent Claim Certificate shall not be required to make any assessment delivered by the Indemnified Party reasonably promptly after such Indemnified Party becomes aware of the foregoing Officer’s existence of a claim; provided, however, that no delay on the part of an Indemnified Party in delivering a Claim Certificate shall relieve the Indemnifying Party from any of its obligations under this Article IX unless (and shall be able then only to rely conclusively upon its contentthe extent that) the Indemnifying Party is prejudiced thereby in terms of any defense or claim available to the Indemnifying Party or the amount of Losses for which the Indemnifying Party is obligated to indemnify the Indemnified Parties.
(b) Following its receipt of an Officer’s a Claim Certificate, the Shareholder Representative Indemnifying Party shall have thirty (30) 30 calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an a “Claim Objection Notice”) to the Indemnified Party submitting such Officer’s Certificate at the address of such Indemnified Party set forth in such Officer’s Certificate, with a copy to the Escrow AgentParty. In the event that the Shareholder Representative Indemnifying Party shall (i) agree in writing that the Indemnified Party to is entitled to receive all of the indemnifiable Losses; or (ii) fail to object, pursuant to this Section 8.5(b9.4(b), to any item or amount indemnifiable Losses set forth in an Officer’s a Claim Certificate within the foregoing thirty (30) calendar-30 calendar day period, the Shareholder Representative Indemnifying Party shall be deemed to have irrevocably agreed and consented objected to such item or amount. Upon indemnifiable Losses, and each of the expiration of parties may initiate a legal action and such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent dispute shall promptly release from the Escrow Fund and deliver to the Indemnified Party that has previously delivered the Officer’s Certificate only an amount of cash equal to any item(s) and amount(s) that the Shareholder Representative is deemed to have accepted pursuant to this be resolved in accordance with Section 8.5(b)11.10.
(c) In the event that the Shareholder Representative shall object, Indemnifying Party delivers a Claim Objection Notice pursuant to Section 8.5(b9.4(b) hereof, hereof as to any item(s) or amount(s) set forth in any Officer’s Claim Certificate, the Shareholder Representative Share Seller and the Indemnified Party Buyers, shall attempt in good faith to agree upon the rights of the respective Parties parties with respect to each of such claimsclaims objected to in such Claim Objection Notice for a period of 30 days after delivery of the Claim Objection Notice. If the Shareholder Representative Buyers, and the Indemnified Party Share Seller should so agree, a written memorandum setting forth such agreement shall be prepared and signed by both Parties and them and, in the case of a claim in whole or in part against the General Indemnity Escrow Fund, shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions promptly release from the General Indemnity Escrow Fund in accordance with and deliver to the terms thereofIndemnified Parties an amount of cash equal to the indemnifiable Losses so agreed.
(d) If no such agreement can Should the parties be reached after good faith negotiation and prior unable to thirty (30) calendar days after delivery of an agree as to any particular item or items or Loss or Losses specified in a Claim Objection NoticeNotice within the time periods specified in Section 9.4(c), either the Shareholder Representative or the Indemnified Party may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative and the Indemnified Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list then each of the Shareholder Representative parties may initiate a legal action and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.
(e) Any such arbitration dispute shall be held resolved in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Associationaccordance with Section 11.12. The arbitrator shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The A final decision of the arbitrator applicable court for which no timely appeal is pending or as to which the time for filing such appeal has expired as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, binding and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitratorparties, and notwithstanding anything in Article IX, the Escrow Agent parties shall be entitled to rely on, and make distributions from the Escrow Fund act in accordance with, the terms of with such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator requiring payment by one Party to another, such Party shall make the payment to such other Party, including any distributions out of the Escrow Fund, as applicabledetermination.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
Appears in 1 contract
Indemnification Claims Procedures. All claims for indemnification by any party seeking indemnification (the "Indemnified Party") from another party (the "Indemnifying Party") under Sections 10.1 and 10.2 shall be asserted and resolved as follows:
(a) An In the event that any claim or demand for which the Indemnifying Party would be liable to any Indemnified Party may make an indemnification claim pursuant hereunder is asserted against or sought to Section 8.2 by delivering a certificate (an “Officer’s Certificate”) to the Shareholder Representative, with a copy to the Escrow Agent, (i) stating that an be collected from any Indemnified Party has paidby a third party, sustained, suffered or incurred the Indemnified Party shall promptly notify the Indemnifying Party (or reasonably anticipates that it will have to pay, sustain, suffer or incurand any known pertinent insurance carrier) Losses, and (ii) specifying in reasonable detail of such claim or demand and the individual items of Losses included in the aggregate amount of the Losses being claimed, the date each such item was paid, sustained, suffered, incurred or accrued, or the basis for such anticipated liability, and, if applicable, estimated amount thereof to the nature of the misrepresentation, breach of warranty or covenant to extent then feasible (which such item is related. The Escrow Agent estimate shall not be required to make any assessment conclusive of the foregoing Officer’s Certificate final amount of such claim and shall be able to rely conclusively upon its content.
demand) (b) Following receipt of an Officer’s Certificate, the Shareholder Representative "Claim Notice"). The Indemnifying Party shall have thirty (30) calendar days to object to any item(s) from the personal delivery or amount(s) set forth therein by delivering written notice thereof mailing of the Claim Notice (an “Objection Notice”the "Notice Period") to notify the Indemnified Party submitting such Officer’s Certificate at whether or not the address of such Indemnifying Party desires to defend the Indemnified Party set forth against such claim or demand. All costs and expenses incurred by the Indemnifying Party in defending such Officer’s Certificateclaim or demand shall be a liability of, with a copy to and shall be paid by, the Escrow AgentIndemnifying Party. In the event that the Shareholder Representative shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Certificate within the foregoing thirty (30) calendar-day period, the Shareholder Representative shall be deemed to have irrevocably agreed and consented to such item or amount. Upon the expiration of such thirty (30) calendar-day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand and except as hereinafter provided, the Indemnifying Party shall have the right to defend the Indemnified Party by counsel of the Indemnifying Party's own choosing, either in the Indemnifying Party's name, or the Indemnified Party's name by appropriate proceedings. If any Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense and, in any event, the Indemnified Party shall cooperate with the Indemnifying Party and such counsel. To the extent the Indemnifying Party shall control or participate in the defense or settlement of any third party claim or demand, the Indemnified Party shall give to the Indemnifying Party and its counsel access to, during normal business hours, the 36 relevant business records and other documents, and shall permit them to consult with the employees and counsel of the Indemnified Party to the extent consistent with the application of relevant evidentiary privileges. The Indemnifying Party shall keep the Indemnified Party reasonably apprised of the course of any negotiations or proceedings and the Indemnifying Party shall not settle any claim or demand without the consent of the affected Indemnified Party, which consent shall not be unreasonably withheld or unduly delayed. As soon as reasonably practicable after the Indemnifying Party has previously delivered reached a final decision as to whether or not all or any portion of the Officer’s Certificate only an amount obligations related to such claim or demand are obligations for which the Indemnifying Party is required to indemnify such Indemnified Party hereunder and, in any event, prior to entering into any such settlement or other final resolution of cash equal any claim or demand, the Indemnifying Party shall notify the Indemnified Party in writing of its position as to whether or not all or any item(sportion of the obligations related to such claim or demand are obligations for which the Indemnifying Party is required to indemnify such Indemnified Party in accordance with this Article X.
(b) and amount(s) that If the Shareholder Representative Indemnifying Party elects or is deemed to have accepted pursuant elected not to take over the defense of any such claim or demand, the Indemnified Party shall have the right to defend, compromise and settle such claim or demand on such terms as the Indemnified Party in his, her or its discretion may determine, subject to the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld or unduly delayed, and the Indemnifying Party shall continue to be bound to indemnify the Indemnified Party in accordance with and to the extent provided under the terms of this Section 8.5(b)Article X. The Indemnified Party shall or shall direct in writing its counsel to deliver to the Indemnifying Party copies of all correspondence and other matters relating to such claim or demand. Notwithstanding the foregoing, to the extent that the claim or demand involves or could result in claims against, or potential liability of, the Indemnifying Party the extent or nature of which were not known by the Indemnifying Party as of the date the Indemnifying Party elects or is deemed to have elected not to take over the defense of such claim or demand, the Indemnifying Party shall, by written notice to the Indemnified Party, be entitled to take over the defense of such claim or demand.
(c) In the event that an Indemnified Party should have a claim against the Shareholder Representative shall objectIndemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third 37 party, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Certificate, the Shareholder Representative and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective Parties promptly send a Claim Notice with respect to each of such claims. If the Shareholder Representative and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and shall be furnished claim to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereofIndemnifying Party.
(d) If no such agreement can be reached after good faith negotiation and prior The Indemnified Party's failure to thirty (30) calendar days after delivery give reasonably prompt notice to the Indemnifying Party of any actual, threatened or possible claim or demand which may give rise to a right of indemnification hereunder shall not relieve the Indemnifying Party of any liability which it may have to an Objection Notice, either the Shareholder Representative or the Indemnified Party may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable except to the Shareholder Representative and extent the Indemnified failure to give such notice prejudiced the Indemnifying Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty (30) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association shall provide a list of ten (10) potential arbitrators with relevant industry experience, from which list each of the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitrator.
(e) Any such arbitration shall be held in the County of New York, New York, New York, under the rules then in effect of the American Arbitration Association. The arbitrator shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall establish procedures designed to reduce the cost and time for discovery while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator to discover all relevant information from the opposing Parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Certificate shall be final, binding, and conclusive upon the Shareholder Representative (on behalf of the Sellers) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator requiring payment by one Party to another, such Party shall make the payment to such other Party, including any distributions out of the Escrow Fund, as applicable.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, including the courts of the County of New York, State of New York or the country of Sweden.
Appears in 1 contract
Indemnification Claims Procedures. (a) An With respect to Sections 9.2(a) and 9.2(b), an Indemnified Party may make an indemnification claim pursuant to Section 8.2 Sections 9.2(a) and 9.2(b) by delivering a certificate (an a “Officer’s Claim Certificate”) to the Shareholder RepresentativeSecurityholder Representatives, with a copy to the Escrow AgentAgent (if and to the extent that the Indemnified Party is seeking recourse against the Escrow Fund), and/or to one or more Company Stockholders (if and to the extent that the Indemnified Party is seeking recourse directly against any such Company Stockholder and any of such parties also being referred to herein as the “Indemnifying Party”), (i) stating that an Indemnified Party has paid, sustained, suffered suffered, incurred or incurred accrued (or reasonably anticipates that it will have to pay, sustain, suffer suffer, incur, or incuraccrue) Losses, and (ii) specifying in reasonable detail the individual items of Losses included in the aggregate amount of the Losses being claimedso stated, the date each such item was paid, sustained, suffered, incurred or accrued, or the basis for such anticipated liability, and, if applicable, the nature of the misrepresentation, breach of warranty or covenant to which such item is related. The Escrow Agent shall not be required to make any assessment of the foregoing Officer’s Certificate and shall be able to rely conclusively upon its content.
(b) Following its receipt of an Officer’s a Claim Certificate, the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) shall have thirty (30) calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof (an “Objection Notice”) to the Indemnified Party submitting such Officer’s Claim Certificate at the address of such Indemnified Party set forth in such Officer’s Claim Certificate, with a copy to the Escrow AgentAgent (if and to the extent that the Indemnified Party is seeking recourse against the Escrow Fund in connection with Sections 9.2(a) and 9.2(b)). In the event that the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) shall fail to object, pursuant to this Section 8.5(b9.5(b), to any item or amount set forth in an Officer’s such Claim Certificate within the foregoing thirty (30) calendar-calendar day period, the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) shall be deemed to have irrevocably agreed and consented to each such item or amount. Upon With respect to claims against the Escrow Fund, upon the expiration of such thirty (30) calendar-day calendar day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Escrow Fund and deliver to the any Indemnified Party that has previously delivered the Officer’s Claim Certificate only an amount of cash equal to any item(s) and amount(s) that the Shareholder Representative Indemnifying Party is deemed to have accepted pursuant to this Section 8.5(b9.5(b).
(c) In the event that the Shareholder Representative an Indemnifying Party or Parties (as a single group, if applicable) shall object, pursuant to Section 8.5(b9.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Claim Certificate, the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective Parties parties with respect to each of such claims. If the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and parties and, in the case of a claim against the Escrow Fund, shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereofhereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) or the Indemnified Party may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) and the Indemnified Party. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative Indemnifying Party or Parties (as a single group, if applicable) and the Indemnified Party cannot mutually agree on one arbitrator, then, within thirty fifteen (3015) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association Indemnifying Party or Parties (as a single group, if applicable) and the Indemnified Party shall provide each select one (1) arbitrator. The two (2) arbitrators so selected shall select a list of ten (10) potential arbitrators with third arbitrator, who shall have relevant industry experience, from which list each of to conduct the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitratorarbitration.
(e) Any such arbitration shall be held in the County of New YorkSan Mateo County, New York, New YorkCalifornia, under the rules then in effect of the American Arbitration Association. The arbitrator arbitrator(s) shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Partyparty, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator or arbitrators, as the case may be, shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the Parties parties an opportunity, adequate in the sole judgment of the arbitrator or majority of the three arbitrators, as the case may be, to discover all relevant information from the opposing Parties parties about the subject matter of the dispute. The arbitrator arbitrator, or a majority of the three arbitrators, as the case may be, shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator arbitrators or a majority of the three arbitrators, as the case may be, determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator or a majority of the three arbitrators, as the case may be, as to the validity and amount of any claim in such Officer’s Claim Certificate shall be final, binding, and conclusive upon the Shareholder Representative Indemnifying Party or Parties (on behalf of the Sellersas a single group, if applicable) and the Indemnified Party. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitratorarbitrator(s). With respect to claims against the Escrow Fund, and the Escrow Agent shall be entitled to rely on, and make distributions from the Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator arbitrator(s) requiring payment by one Party (1) party to another, such Party party shall make the payment to such other Partyparty, including any distributions out of the Escrow Fund, as applicableFund with respect to Sections 9.2(a) or 9.2(b).
(f) Judgment upon any award rendered by the arbitrator arbitrator(s) may be entered in any court having jurisdiction.
(g) The foregoing arbitration provisions shall apply to any dispute among any Indemnifying Party or Parties (as a single group, including if applicable) and the courts of the County of New York, State of New York or the country of SwedenIndemnified Parties under this Article IX.
Appears in 1 contract
Indemnification Claims Procedures. (a) An With respect to Section 8.2(a) or Section 8.2(b), an Indemnified Party may make an indemnification claim pursuant to Section 8.2 8.2(a) or Section 8.2(b), as applicable, by delivering a certificate (an a “Officer’s Claim Certificate”) (i) in the case of a Parent Indemnifiable Matter, to the Shareholder Representative, with a copy to the Escrow AgentAgent (if and to the extent that the Parent Indemnified Party is seeking recourse against the Indemnity Escrow Fund), and/or to one or more Company Stockholders (if and to the extent that the Parent Indemnified Party is seeking recourse directly against any such Company Stockholder), (iA) stating that an a Parent Indemnified Party has (x) paid, sustainedsuffered, suffered incurred or incurred sustained Losses, (y) recorded an accrual in the amount of the Losses in its financial statements in accordance with GAAP included in a report filed with the SEC or reasonably expected to be included in the next subsequent quarterly report on Form 10-Q (or, if accrued during the last three months of a fiscal year, an annual report on Form 10-K) to be filed with the SEC; provided, however, that if such accrual is subsequently reversed, whether as a result of the subsequent review or audit of such financial statements or in financial statements for or as of a subsequent period or date, the Claim Certificate or Claim shall be deemed to be withdrawn and no Claim for indemnification shall be entitled to be made with respect to such matter unless the period during which such Claim can be made pursuant to this Article VIII shall not otherwise have lapsed, or (z) in the case of a Third Party Claim, that it reasonably anticipates that it such Parent Indemnified Party will have to pay, sustain, suffer incur or incur) sustain Losses, and (iiB) specifying in reasonable detail to the extent available the individual items of Losses included in the aggregate amount of the Losses being claimedso stated, the date each such item was paid, sustained, suffered, incurred or accruedsustained, or the basis for such anticipated liability, and, if applicable, the nature of the misrepresentationinaccuracy, misrepresentation or breach of warranty or covenant to which such item is related. The Escrow Agent , or (ii) in the case of a Company Indemnifiable Matter, in which case the Representative shall not be required to make any assessment deliver such notice, to Parent, (A) stating that a Company Indemnified Party has (x) paid, suffered, incurred or sustained Losses, (y) recorded an accrual for Losses in the amount of the foregoing Officer’s Losses in its financial statements in accordance with GAAP; provided, however that if such accrual is subsequently reversed, whether as a result of the subsequent review or audit of such financial statements or in financial statements for or as of a subsequent period or date, the Claim Certificate and or Claim shall be able deemed to rely conclusively upon its contentbe withdrawn and no Claim for indemnification shall be entitled to be made with respect to such matter unless the period during which such Claim can be made pursuant to this Article VIII shall not otherwise have lapsed, or (z) in the case of a Third Party Claim, that it reasonably anticipates that such Company Indemnified Party will have to pay, incur or sustain Losses, and (B) specifying in reasonable detail to the extent available the individual items of Losses included in the amount so stated, the date each such item was paid, suffered, incurred or sustained, or the basis for such anticipated liability, and the nature of the breach of covenant to which such item is related.
(b) Following its receipt of an Officer’s a Claim Certificate, the Shareholder Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder) or Parent, as applicable, shall have thirty (30) calendar days to object to any item(s) or amount(s) set forth therein by delivering written notice thereof which shall specify in reasonable detail (i) each amount to which the Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder), or Parent, as applicable objects and (ii) the nature of each objection (an “Objection Notice”) to the Indemnified Party submitting such Officer’s Claim Certificate at the address of such Indemnified Party set forth in such Officer’s Claim Certificate, with a copy to the Escrow AgentAgent (if and to the extent that a Parent Indemnified Party is seeking recourse against the Indemnity Escrow Fund in connection with Section 8.2(a)). In the event that the Shareholder Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder), or Parent, as applicable shall fail to object, pursuant to this Section 8.5(b), to any item or amount set forth in an Officer’s Claim Certificate within the foregoing thirty (30) calendar-calendar day period, the Shareholder Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder), or Parent, as applicable, shall be deemed to have irrevocably agreed and consented to each such item or amount. Upon With respect to claims against the Indemnity Escrow Fund for which the Representative does not object, or upon the expiration of such thirty (30) calendar-day calendar day period, if the Shareholder Representative has failed to provide an Objection Notice, the Escrow Agent shall promptly release from the Indemnity Escrow Fund and deliver to the any Parent Indemnified Party that has previously delivered the Officer’s Claim Certificate only an amount of cash and Parent Common Stock equal to any item(s) and amount(s) that the Shareholder Representative has not objected to, or is deemed to have accepted pursuant to this Section 8.5(b).
(c) In the event that the Shareholder Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder), or Parent, as applicable, shall object, pursuant to Section 8.5(b) hereof, to any item(s) or amount(s) set forth in any Officer’s Claim Certificate, the Shareholder Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder) and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective Parties parties with respect to each of such claims. If the Shareholder Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder), or Parent, as applicable, and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both Parties and parties and, in the case of a claim against the Indemnity Escrow Fund, shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Indemnity Escrow Fund in accordance with the terms thereofhereof.
(d) If no such agreement can be reached after good faith negotiation and prior to thirty (30) calendar days after delivery of an Objection Notice, either the Shareholder Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder) or the Indemnified Party Parent may demand arbitration of the matter unless the amount of the Loss that is at issue is the subject of a pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Parties parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one (1) arbitrator mutually agreeable to the Shareholder Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder) and the Indemnified PartyParent. In the event that, within thirty (30) calendar days after submission of any dispute to arbitration, the Shareholder Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder) and the Indemnified Party Parent cannot mutually agree on one arbitrator, then, within thirty fifteen (3015) calendar days after the end of such thirty (30) calendar-day period, them the American Arbitration Association Representative (or, if such indemnification claim is made directly against a Company Stockholder, such Company Stockholder) and Parent shall provide each select one (1) arbitrator. The two (2) arbitrators so selected shall select a list of ten (10) potential arbitrators with third arbitrator, who shall have relevant industry experience, from which list each of to conduct the Shareholder Representative and the Indemnified Party may strike up to three (3) names, and after which the American Arbitration Association shall designate one (1) of the remaining individuals to serve as the arbitratorarbitration.
(e) Any such arbitration shall be held in the County of New YorkSanta Xxxxx County, New York, New YorkCalifornia, under the rules then in effect of the American Arbitration Association. The arbitrator arbitrator(s) shall determine how all expenses relating to the arbitration shall be paid, including the respective expenses of each Partyparty, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator or arbitrators, as the case may be, shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the Parties parties an opportunity, adequate in the sole judgment of the arbitrator arbitrator, to discover all relevant information from the opposing Parties parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator as to the validity and amount of any claim in such Officer’s Claim Certificate shall be final, binding, and conclusive upon Parent, the Shareholder Representative (on behalf of Representative, the Sellers) Company Indemnifying Parties, the Parent Indemnifying Parties, the Company Indemnified Parties and the Parent Indemnified PartyParties. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator. With respect to claims against the Indemnity Escrow Fund, and the Escrow Agent shall be entitled to rely on, and make distributions from the Indemnity Escrow Fund in accordance with, the terms of such award, judgment, decree or order as applicable. Within fifteen (15) calendar days of a decision of the arbitrator requiring payment by one Party (1) party to another, such Party party shall make the payment to such other Partyparty, including any distributions out of the Indemnity Escrow Fund, Fund as applicable.
(f) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction.
(g) The foregoing arbitration provisions shall apply to any dispute among the Representative, including Parent, any Indemnifying Party or Parties (as a single group, if applicable) and/or the courts of the County of New York, State of New York or the country of SwedenIndemnified Parties under this Article VIII.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Harmonic Inc)
