Indemnification Claims. (a) If either a Purchaser Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") wishes to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (a "Claim Notice") setting forth: (i) the matter giving rise to the Claim for indemnification, (ii) a detailed description of all of the facts and circumstances known to Claimant giving rise to the Claim, and (iii) a detailed description of, and a reasonable estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought. (b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty (20) days after receipt of any Claim Notice, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter.
Appears in 6 contracts
Samples: Acquisition Agreement (Mail Well Inc), Acquisition Agreement (Mail Well Inc), Acquisition Agreement (Mail Well Inc)
Indemnification Claims. (a) If either a Purchaser Indemnified Party, on In the one handevent that any of the Parties are entitled, or a Shareholder seek to assert rights, to indemnification under this Article VI, the Party or Parties seeking indemnification (the “Indemnified Party, on Parties”) shall give written notification to the other hand, Party or Parties (the "Claimants"“Indemnifying Parties”) wishes to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (a "Claim Notice") setting forth:
(i) the matter giving rise to the Claim for indemnification,
(ii) a detailed description of all of the facts and circumstances known commencement of any suit or proceeding relating to Claimant giving rise to the Claim, and
(iii) a detailed description of, and a reasonable estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the Indemnified Parties of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the Indemnified Parties) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the Indemnified Parties in notifying the Indemnifying Parties shall relieve the Indemnifying Parties of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the Indemnifying Parties may, upon written notice thereof to the Indemnified Parties seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the Indemnified Party seeking indemnification; provided that the Indemnifying Parties may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is soughtsought against the Indemnified Party seeking indemnification. If the Indemnifying Parties do not so assume control of such defense, the Indemnified Parties seeking indemnification shall control such defense. The Party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the Indemnifying Parties assumes control of such defense and the Indemnified Parties seeking indemnification reasonably concludes that the Indemnifying Parties and the Indemnified Parties seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the Indemnified Parties shall be considered “Damages” for purposes of this Agreement. The Party or Parties controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party as reasonably needed in the defense of such suit or proceeding at the sole cost and expense of the Indemnifying Parties under Section 6.1 or 6.2, which cost and expense shall be considered “Damages” for purposes of this Agreement. The Indemnifying Parties shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the Indemnified Parties, which shall not be unreasonably withheld or delayed; provided that the consent of the Indemnified Parties shall not be required if the Indemnifying Parties agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the Indemnified Parties from further liability and has no other materially adverse effect on the Indemnified Parties. The Indemnified Parties shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the Indemnifying Parties, which shall not be unreasonably withheld or delayed.
(b) Purchaser In order to seek indemnification under this Article VI, the Indemnified Parties shall give written notification (a “Claim Notice”) to the Indemnifying Parties which contains (i) a description and Shareholder the amount (the “Claimed Amount”) of any Damages incurred or reasonably expected to be incurred by the Indemnified Parties, (ii) a statement that the Indemnified Parties are referred is entitled to herein as "Indemnified Parties," indemnification under this Article VI for such Damages and a reasonable explanation of the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). basis therefor, and (iii) a demand for payment (in the manner provided in paragraph (c) below) in the amount of the Claimed Amount.
(c) Within twenty (20) days after receipt delivery of any a Claim Notice, the Indemnifying Parties will shall deliver to the Indemnified Parties a written response (the “Response”) in which the Indemnifying Parties shall: (i) acknowledge agree that the Indemnified Parties is entitled to receive all of the Claimed Amount, (ii) agree that the Indemnified Parties is entitled to receive part, but not all, of the Claimed Amount (the “Agreed Amount”) or (iii) dispute that the Indemnified Parties is entitled to receive any of the Claimed Amount. If the Indemnifying Parties in writing their responsibility the Response disputes its liability for all or part of the Claimed Amount, the Indemnifying Parties and the Indemnified Parties shall follow the procedures set forth in Section 6.3(d) for the resolution of such dispute (a “Dispute”).
(d) During the 60-day period following the delivery of a Response that reflects a Dispute, the Indemnifying Parties and the Indemnified Parties shall use good faith efforts to resolve the Dispute. If the Dispute is not resolved within such 60-day period, the Indemnifying Parties and the Indemnified Parties shall discuss in good faith the submission of the Dispute to a mutually acceptable alternative dispute resolution procedure (which may be non-binding or binding upon the parties, as they agree in advance) (the “ADR Procedure”). In the event the Indemnifying Parties and the Indemnified Parties agree upon an ADR Procedure, such parties shall, in consultation with the chosen dispute resolution service (the “ADR Service”), promptly agree upon a format and timetable for the ADR Procedure, agree upon the rules applicable to the ADR Procedure, and promptly undertake the ADR Procedure. The provisions of this Section 6.3(d) shall not obligate the Indemnifying Parties and the Indemnified Parties to pursue an ADR Procedure or prevent either such Party from pursuing the Dispute in a court of competent jurisdiction; provided that, if the Indemnifying Parties and the Indemnified Parties agree to pursue an ADR Procedure, neither the Indemnifying Parties nor the Indemnified Parties may commence litigation or seek other remedies with respect to the Dispute prior to the completion of such ADR Procedure. Any ADR Procedure undertaken by the Indemnifying Parties and the Indemnified Parties shall be considered a compromise negotiation for purposes of federal and state rules of evidence, and all statements, offers, opinions and disclosures (whether written or oral) made in the course of the ADR Procedure by or on behalf of the Indemnifying Parties, the Indemnified Parties or the ADR Service shall be treated as confidential and, where appropriate, as privileged work product. Such statements, offers, opinions and disclosures shall not be discoverable or admissible for any purposes in any litigation or other proceeding relating to the Dispute (provided that this sentence shall not be construed to exclude from discovery or admission any matter that is otherwise discoverable or admissible). The fees and expenses of any ADR Service used by the Indemnifying Parties and the Indemnified Parties shall be considered to be Damages; provided, that if the Indemnifying Parties are determined not to be liable for Damages in connection with such Dispute, the Indemnified Parties shall pay all such fees and expenses. Notwithstanding the other provisions of this Section 6.3, if a third party asserts (other than by means of a lawsuit) that the Buyer, the Company or any of their Subsidiaries is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which the Buyer may be entitled to indemnification is sought under pursuant to this Article 11VI, and will either (x) pay the Buyer reasonably determines that the Company or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance any of their obligations hereunderSubsidiaries has a valid business reason to fulfill such obligation, and/or then (i) the Buyer shall be entitled to satisfy such obligation, with prior notice to but without prior consent from the Indemnifying Selling Parties, (ii) give written notice the Buyer may subsequently make a claim for indemnification in accordance with the provisions of this Article VI, and (iii) the Buyer shall be reimbursed, in accordance with the provisions of this Article VI, for any such Damages for which it is entitled to indemnification pursuant to this Article VI (subject to the Indemnified Party right of their intention the Indemnifying Selling Parties to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention the Buyer’s entitlement to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility forindemnification, or the amount offor which it is entitled to indemnification, any such matterunder the terms of this Article VI).
Appears in 4 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement, Asset Purchase Agreement (Ds Healthcare Group, Inc.)
Indemnification Claims. (a) If either In order to seek indemnification under this Section 9, a Purchaser Person entitled to indemnification under Section 9.2 or Section 9.3 (an “Indemnified Party”) shall deliver, in good faith, a written demand (an “Indemnification Demand”) to the Stockholders’ Representative (in the case of Indemnification Demands from a Parent Indemnitee) or Parent (in the case of Indemnification Demands from Company Stockholders) which contains (i) a description and the amount (the “Asserted Damages Amount”) of any Damages incurred or reasonably expected to be incurred by the Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") wishes to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (a "Claim Notice") setting forth:
(i) the matter giving rise to the Claim for indemnification,
(ii) a detailed description of all statement that the Indemnified Party is entitled to indemnification under this Section 9 for such Damages and a reasonable explanation of the facts basis therefor, and circumstances known to Claimant giving rise to the Claim, and
(iii) a detailed description ofdemand for payment in the amount of such Damages. If the Indemnified Party is a Parent Indemnitee and the Indemnified Party is entitled to indemnification under Section 9.2, and Parent shall also deliver a reasonable estimate copy of the total amount ofIndemnification Demand to the Escrow Agent contemporaneously with its delivery to the Stockholders’ Representative. For all purposes of this Section 9.10(a), the monetary amounts actually incurred or expected Stockholders’ Representative shall be entitled to be incurred for which indemnification is soughtdeliver Indemnification Demands to Parent on behalf of the Company Stockholders.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty thirty (2030) days after receipt delivery of any Claim Noticean Indemnification Demand to the Stockholders’ Representative or Parent (as the case may be), such party shall deliver to the Indemnifying Parties will other of such parties a written response (the “Response”) in which the party providing the Response shall: (i) acknowledge agree that the Indemnified Party is entitled to receive all of the Asserted Damages Amount (in writing their responsibility for all or part which case, if the Indemnified Party is (A) Parent, then the Stockholders’ Representative and Parent shall deliver to the Escrow Agent, within three days following the delivery of the Response, a written notice executed by both such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy parties instructing the portion Escrow Agent to distribute to Parent such number of such matter as Escrow Shares equal to which responsibility is acknowledgedthe quotient of the Asserted Damages Amount divided by the Agreement Conversion Price, or (yB) take such other action as is the Company Stockholders, then Parent shall, in accordance with a distribution method reasonably satisfactory acceptable to the Stockholders’ Representative, distribute to the Company Stockholders cash equal to the Asserted Damages Amount (in either case, subject to the limitations of Sections 9.5 and 9.6); (ii) agree that the Indemnified Party is entitled to provide reasonable security receive part, but not all, of the Asserted Damages Amount (such portion, the “Agreed Portion”) (in which case, if the Indemnified Party is (A) Parent, then the Stockholders’ Representative and Parent shall deliver to the Escrow Agent, within three days following the delivery of the Response, a written notice executed by both such parties instructing the Escrow Agent to distribute to Parent such number of Escrow Shares equal to the quotient of the Agreed Portion divided by the Agreement Conversion Price, or other assurances for (B) the performance Company Stockholders, then Parent shall, in accordance with a distribution method reasonably acceptable to the Stockholders’ Representative, distribute to the Company Stockholders cash equal to the Amount of their obligations hereunderthe Agreed Portion (subject to the limitations of Sections 9.5 and 9.6); or (iii) dispute that the Indemnified Party is entitled to receive any of the Asserted Damages Amount.
(c) In the event that the party providing a Response pursuant to Section 9.10(b) shall (i) dispute that the Indemnified Party is entitled to receive any of the Asserted Damages Amount, and/or or (ii) give written notice to agree that the Indemnified Party is entitled to only the Agreed Portion of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contestthe Asserted Damages Amount, the parties will negotiate Stockholders’ Representative and Parent shall attempt in good faith to resolve as promptly as possible any dispute as agree upon the rights of the respective parties with respect to responsibility for, each of the indemnification claims that comprise the Asserted Damages Amount (or the amount ofportion of the Asserted Damages Amount not comprising the Agreed Portion). If the Stockholders’ Representative and Parent should so agree, a memorandum setting forth such agreement shall be prepared and signed by both such Parties and, in the case of a demand for recovery from the Escrow Fund, shall be furnished to the Escrow Agent. If no such agreement can be reached after good faith negotiation within sixty days after delivery of a Response, either Parent or the Stockholders’ Representative may demand arbitration of any matter set forth in the applicable Indemnification Demand, which arbitration shall be conducted pursuant to Section 10.11.
(d) If on or prior to the Company Expiration Date, any such matterParent Indemnitee has made an Indemnification Demand containing a claim which has not been resolved prior to the Company Expiration Date in accordance with Section 9 and the Escrow Agreement, the Escrow Agent shall retain in the Escrow Account after the Company Expiration Date, Escrow Shares collectively having a Agreement Conversion Price of the Asserted Amount or contested portion of the Asserted Amount, as the case may be, with respect to all claims which have not then been resolved.
Appears in 4 contracts
Samples: Agreement and Plan of Merger and Reorganization (Entropic Communications Inc), Agreement and Plan of Merger and Reorganization (Entropic Communications Inc), Agreement and Plan of Merger and Reorganization (Entropic Communications Inc)
Indemnification Claims. (a) If either a Purchaser In order for any Indemnified PartyPerson to seek indemnification under this Section 10, on the one handsuch Indemnified Person shall deliver, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") wishes to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Partyin good faith, a written notice demand (a "Claim Notice"an “Indemnification Demand”) setting forth:
to the Indemnifying Person and, in the case of the Cypress Indemnitees, to the Escrow Agent, which contains (i) a description and the matter giving rise amount (the “Asserted Damages Amount”) of any Damages incurred or reasonably expected to be incurred by the Claim for indemnification,
Indemnified Person, (ii) a detailed description of all statement that the Indemnified Person is entitled to indemnification under this Section 10 for such Damages and a reasonable explanation of the facts basis therefor, and circumstances known to Claimant giving rise to the Claim, and
(iii) a detailed description of, and a reasonable estimate demand for payment in the amount of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is soughtsuch Damages.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty (20) 20 days after receipt delivery of any Claim Noticean Indemnification Demand, the Indemnifying Parties will Person shall deliver to the Indemnified Person a written response (the “Response”) in which the Indemnifying Person shall: (i) acknowledge agree that the Indemnified Person is entitled to receive all of the Asserted Damages Amount, and, in writing their responsibility for all the case of an Indemnification Demand made by a Cypress Indemnitee, the Indemnified Person and the Indemnifying Person shall deliver to the Escrow Agent, within three days following the delivery of the Response, a written notice executed by both such parties instructing the Escrow Agent to disburse the full Asserted Damages Amount to the extent of the remaining Escrow Funds to the Indemnified Person; (ii) agree that the Indemnified Person is entitled to receive part, but not all, of the Asserted Damages Amount (such portion, the “Agreed Portion”), and, in the case of an Indemnification Demand made by a Cypress Indemnitee, the Indemnified Person and the Indemnifying Person shall deliver to the Escrow Agent, within three days following the delivery of the Response, a written notice executed by both such parties instructing the Escrow Agent to disburse the Agreed Portion to the extent of the remaining Escrow Funds to the Indemnified Person; or part (iii) dispute that the Indemnified Person is entitled to receive any of such matter for which indemnification the Asserted Damages Amount.
(c) In the event that the Indemnifying Person shall (i) dispute that the Indemnified Person is sought under this Article 11, and will either (x) pay or otherwise satisfy entitled to receive any of the portion of such matter as to which responsibility is acknowledgedAsserted Damages Amount, or (yii) take such other action as is reasonably satisfactory to agrees that the Indemnified Party Person is entitled to provide reasonable security or other assurances for only the performance Agreed Portion of their obligations hereunderthe Asserted Damages Amount, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, Person and the parties will negotiate Indemnifying Person shall attempt in good faith to resolve as promptly as possible agree upon the rights of the respective parties with respect to each of the indemnification claims that comprise the Asserted Damages Amount (or the portion of the Asserted Damages Amount not comprising the Agreed Portion). If the Indemnified Person and the Indemnifying Person should so agree, a memorandum setting forth such agreement shall be prepared and signed by both such parties and, in the case of an Indemnification Demand made by a Cypress Indemnitee, shall be furnished to the Escrow Agent. If no such agreement can be reached after good faith negotiation within 60 days after delivery of a Response, either the Indemnified Person or the Indemnifying Person may demand arbitration of any matter set forth in the applicable Indemnification Demand.
(d) If no agreement is reached, the matter shall be settled by arbitration conducted by one arbitrator mutually agreeable to the Indemnified Person and the Indemnifying Person. In the event that, within thirty days after submission of any dispute to arbitration, the Indemnified Person and the Indemnifying Person cannot mutually agree on one arbitrator, then the parties shall arrange for the American Arbitration Association to designate a single arbitrator’ in accordance with the rules of the American Arbitration Association. Any such arbitration shall be held in San Diego County, California, under the rules and procedures 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 the arbitrator and the administrative fee of the American Arbitration Association. The arbitrator shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the Indemnified Person and the Indemnifying Person an opportunity, adequate in the sole judgment of the arbitrator to discover 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 responsibility forthe validity and amount of any indemnification claim in such Indemnification Demand shall be subject to the limitations set forth in this Agreement and final, binding and conclusive upon the parties. 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 amount of, arbitrator. All payments required by the arbitrator shall be made within thirty days after the decision of the arbitrator is rendered. Judgment upon any such matteraward rendered by the arbitrator may be entered in any court having jurisdiction.
Appears in 4 contracts
Samples: Asset Purchase Agreement (Exagen Inc.), Asset Purchase Agreement (Exagen Inc.), Asset Purchase Agreement (Exagen Diagnostics Inc)
Indemnification Claims. (a) If either a Purchaser an Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") Party wishes to assert an indemnification claim hereunderhereunder (a “Claim”), the Claimant Indemnified Party shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, responsible Indemnifying Party a written notice (a "“Claim Notice"”) setting forth:
(i) a description of the matter giving rise to the Claim for indemnification,
(ii) Claim, including a reasonably detailed description of all of the facts and circumstances known to Claimant the Indemnified Party giving rise to the Claim, and
(iiiii) a detailed description ofto the extent determinable and based upon facts known to the Indemnified Party at such time, and a reasonable an estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty forty-five (2045) days after receipt of any Claim Notice, the Indemnifying Parties will Party shall (i) acknowledge in writing their its responsibility for all or part of such matter for which indemnification is sought under this Article 11VIII, and will either (xA) pay or otherwise satisfy (subject to the terms and conditions of Section 8.04) the portion of such matter as to which responsibility is acknowledged, acknowledged or (yB) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their its obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their its intention to dispute or contest all or part of such responsibility. Upon delivery of such the Indemnifying Party’s notice of its intention to contestcontest the Claim, the parties Parties will negotiate in good faith to resolve as promptly as possible any dispute as to the responsibility for, for or the amount of, of any such mattermatter as promptly as possible. If the Parties fail to resolve such dispute within ninety (90) days of delivery of the notice of intention to contest, either Party may submit such Claim for resolution pursuant to Section 9.13.
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement (Digital Brands Group, Inc.), Membership Interest Purchase Agreement (Digital Brands Group, Inc.), Membership Interest Purchase Agreement (Digital Brands Group, Inc.)
Indemnification Claims. (a) If either a Purchaser an Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") Party wishes to assert an indemnification claim hereunderhereunder (a “Claim”), the Claimant Indemnified Party shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, responsible Indemnifying Party a written notice (a "“Claim Notice"”) setting forth:
(i) a description of the matter giving rise to the Claim for indemnification,
(ii) Claim, including a reasonably detailed description of all of the facts and circumstances known to Claimant the Indemnified Party giving rise to the Claim, and
(iiiii) a detailed description ofto the extent determinable and based upon facts known to the Indemnified Party at such time, and a reasonable an estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty thirty (2030) days after receipt of any Claim Notice, the Indemnifying Parties will Party shall (i) acknowledge in writing their its responsibility for all or part of such matter for which indemnification is sought under this Article 11VII, and will either (xA) pay or otherwise satisfy (subject to the terms and conditions of Section 7.04) the portion of such matter as to which responsibility is acknowledged, acknowledged or (yB) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their its obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their its intention to dispute or contest all or part of such responsibility. Upon delivery of such the Indemnifying Party’s notice of its intention to contestcontest the Claim, the parties Parties will negotiate in good faith to resolve as promptly as possible any dispute as to the responsibility for, for or the amount of, of any such mattermatter as promptly as possible. If the Parties fail to resolve such dispute within ninety (90) days of delivery of the notice of intention to contest, either Party may submit such Claim for resolution pursuant to Section 9.12.
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement (Digital Brands Group, Inc.), Membership Interest Purchase Agreement (Digital Brands Group, Inc.), Membership Interest Purchase Agreement (Denim LA, Inc.)
Indemnification Claims. (a) If either a Purchaser Indemnified Party, on the one handany Indemnitee has incurred or suffered or claims to have incurred or suffered, or a Shareholder Indemnified Partybelieves that it may incur or suffer, on the other handDamages for which it is or may be entitled to be held harmless, (the "Claimants") indemnified, compensated or reimbursed under this Section 7, such Indemnitee shall, if it wishes to assert seek indemnification pursuant to this Agreement, deliver a notice to the Representative (any such notice being referred to as a “Notice of Indemnification Claim”, and the claim for indemnification, compensation and reimbursement described in such Notice of Indemnification Claim being referred to as an “indemnification claim hereunderclaim”), the Claimant which shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (a "Claim Notice") setting forth:
(i) the matter giving rise state that such Indemnitee believes that that there is or has been an inaccuracy in or breach of a representation, warranty, covenant or obligation contained in this Agreement or that such Indemnitee is otherwise entitled to the Claim for indemnification,
be held harmless, indemnified, compensated or reimbursed under this Section 7, (ii) contain a reasonably detailed description of all of the facts circumstances supporting such Indemnitee’s belief that there is or has been such an inaccuracy or breach or that such Indemnitee may otherwise be entitled to be held harmless, indemnified, compensated or reimbursed, and circumstances known to Claimant giving rise to the Claim, and
(iii) contain a detailed description ofgood faith, and a reasonable non-binding, preliminary estimate of the total aggregate dollar amount ofof actual and potential Damages that have arisen and may arise as a result of the inaccuracy, breach or other matter referred to in such notice (the monetary amounts actually incurred or expected aggregate amount of such estimate, as it may be modified by such Indemnitee in good faith from time to be incurred for which indemnification is soughttime, being referred to as the “Claimed Amount”).
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred During the thirty (30) day period commencing upon the delivery by an Indemnitee to herein as "Indemnified Parties," and the persons from whom indemnification may Representative of a Notice of Indemnification Claim (the “Dispute Period”), the Representative shall deliver to the Indemnitee a written response (the “Response Notice”) in which the Representative, on behalf of the Securityholders: (i) agrees that the full Claimed Amount is owed to the Indemnitee; (ii) agrees that part (but not all) of the Claimed Amount is owed to the Indemnitee; or (iii) asserts that no part of the Claimed Amount is owed to the Indemnitee. Any part of the Claimed Amount that is not agreed by the Representative on behalf of the Securityholders to be sought owed to the Indemnitee pursuant to this Section 11.6 are the Response Notice (or the entire Claimed Amount, if the Representative asserts in the Response Notice that no part of the Claimed Amount is owed to the Indemnitee) shall be referred to as an "Indemnifying Party"the “Contested Amount” (it being understood that the Contested Amount shall be modified from time to time to reflect any good faith and reasonable modifications by the Indemnitee to the Claimed Amount). Within twenty (20) days after receipt If a Response Notice is not sent to the Indemnitee by the expiration of any Claim Noticethe Dispute Period, then the Representative shall be conclusively and irrevocably deemed to have agreed that the full Claimed Amount is owed to the Indemnitee. If there is a Contested Amount, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, Representative and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate Indemnitee shall attempt in good faith to resolve as promptly as possible the dispute related to the Contested Amount. If the Indemnitee and the Representative resolve such dispute in writing, then their resolution of such dispute shall be binding on the Securityholders, Purchaser and the other Indemnitees and a settlement agreement stipulating the amount owed to the Indemnitee shall be signed by the Indemnitee and the Representative.
(c) If the Representative and the Indemnitee are unable to resolve the dispute relating to any dispute as to responsibility forContested Amount during the thirty (30) day period commencing upon the delivery of the Response Notice, then either the Indemnitee or the amount ofRepresentative may submit the contested portion of the indemnification claim to the courts located in New York County, any such matterNew York in accordance with Section 8.8.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Vir Biotechnology, Inc.), Securities Purchase Agreement (Vir Biotechnology, Inc.)
Indemnification Claims. (a) If either a Purchaser Indemnified Party, on the one handany Indemnitee has incurred or suffered or claims to have incurred or suffered, or believes that it may incur or suffer, Damages for which it is or may be entitled to be held harmless, indemnified, compensated or reimbursed under this Article VI, such Indemnitee may deliver a Shareholder Indemnified Party, on notice to the other hand, Indemnitor (the "Claimants") wishes any such notice being referred to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (as a "Notice of Indemnification Claim," and the claim for indemnification, compensation and reimbursement described in such Notice of Indemnification Claim Noticebeing referred to as an ") setting forth:
Indemnification Claim"), which shall (i) the matter giving rise state that such Indemnitee believes that that there is or has been a possible inaccuracy in or breach of a representation, warranty, covenant or obligation contained in this Agreement or that such Indemnitee is otherwise entitled to the Claim for indemnification,
be held harmless, indemnified, compensated or reimbursed under this Article VI, (ii) contain a detailed brief description of all of the facts circumstances supporting such Indemnitee's belief that there is or has been such a possible inaccuracy or breach or that such Indemnitee may otherwise be entitled to be held harmless, indemnified, compensated or reimbursed, and circumstances known to Claimant giving rise to the Claim, and
(iii) contain a detailed description ofgood faith, and a reasonable non-binding, preliminary estimate of the total aggregate dollar amount ofof actual and potential Damages that have arisen and may arise as a result of the inaccuracy, breach or other matter referred to in such notice (the monetary amounts actually incurred or expected aggregate amount of such estimate, as it may be modified by such Indemnitee in good faith from time to be incurred for which indemnification is soughttime, being referred to as the "Claimed Amount").
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred In the event that the Indemnitee has delivered a Notice of Indemnification Claim to herein as "Indemnified Parties," the Indemnitor, the Indemnitor shall have ten (10) days to deliver a written objection to the Claimed Amount set forth in the Notice of Indemnification Claim. If the Indemnitor timely delivers such a written objection to the Indemnitee, the Indemnitee and the persons from whom indemnification may be sought pursuant Indemnitor shall use commercially reasonable efforts to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty resolve any such objections, but if a final resolution is not obtained within thirty (2030) days after receipt of any Claim Noticethe Indemnitor has submitted its objections, the Indemnifying Parties will (i) acknowledge Indemnitee and the Indemnitor shall submit the matter to non-binding mediation pursuant to Section 8.6 hereto. If the Indemnitor does not deliver a written objection within such time period, the Indemnitee shall be entitled at such time to any amounts due and payable pursuant to such Claimed Amount in writing their responsibility for all or part of such matter for which indemnification is sought under accordance with this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matterVI.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Clone Algo Inc.), Asset Purchase Agreement (Va Software Corp)
Indemnification Claims. (a) If either a Purchaser an Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, Party (the "Claimants"“Claimant”) wishes to assert an indemnification claim hereunderhereunder (a “Claim”), the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, responsible Indemnifying Party a written notice (a "“Claim Notice"”) setting forth:
(i) a description of the matter giving rise to the Claim for indemnification,
(ii) Claim, including a reasonably detailed description of all of the facts and circumstances known to Claimant giving rise to the Claim, and
(iiiii) a detailed description ofto the extent determinable based on facts known to the Claimant at such date, and a reasonable an estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty thirty (2030) days after receipt of any Claim Notice, the Indemnifying Parties will Party shall either (i) acknowledge in writing their its responsibility for all or part of such matter for which indemnification is sought under this Article 11ARTICLE VII, and will either (xA) pay or otherwise satisfy (subject to the terms and conditions of this Article VIII) the portion of such matter as to which responsibility is acknowledged, or (yB) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their its obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their its intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. If the parties fail to resolve such dispute within ninety (90) days of delivery of the notice of intention to contest, either party may submit such dispute for resolution pursuant to Section 9.14.
Appears in 2 contracts
Samples: Merger Agreement (Digital Brands Group, Inc.), Merger Agreement (Denim LA, Inc.)
Indemnification Claims. (a) If either a Purchaser Indemnified Party, on i. Upon receipt by the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") wishes to assert party pursuing an indemnification claim hereunder, under this Section 7 (the Claimant shall deliver to Shareholders, if a Purchaser “Indemnified Party, or to Purchaser, if ”) of a certificate signed by any officer of the Claimant is a Shareholder Indemnified Party, a written notice Party (a "Claim Notice"an “Officer’s Certificate”) setting forth:
(i) the matter giving rise stating that Damages exist with respect to the Claim for indemnification,
(ii) a detailed description of all indemnification obligations of the facts and circumstances known to Claimant giving rise to party against who the Claim, and
(iii) a detailed description of, and a reasonable estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty (20) days after receipt of any Claim Notice, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11(the “Indemnifying Party”) set forth in Section 7(a) or Section 7(b), and will either (x) pay or otherwise satisfy specifying in reasonable detail the portion individual items of such matter as Damages included in the amount so stated, the date each such item was paid, or properly accrued or arose, and the nature of the misrepresentation, breach of warranty, covenant or claim to which responsibility such item is acknowledgedrelated, the Indemnified Party shall, subject to the provisions of this Section 7, be entitled to indemnification by the Indemnifying Party.
ii. The Purchaser or the Stockholders’ Representative, as applicable, shall have a period of thirty (y30) take such other action as is reasonably satisfactory days from and after delivery of any Officer’s Certificate to deliver to the Indemnified Party to provide reasonable security a response, in which the Purchaser or other assurances for the performance of their obligations hereunderStockholders’ Representative, and/or as applicable, shall: (iiA) give written notice to agree that the Indemnified Party is entitled to receive all of their intention the requested Damages or (B) dispute that the Indemnified Party is entitled to dispute receive the requested Damages.
iii. If the Purchaser or contest all Stockholders’ Representative, as applicable, disputes any claim or part of such responsibility. Upon delivery of such notice of intention to contestclaims made in any Officer’s Certificate, the parties will negotiate Indemnified Party shall have thirty (30) days to respond in a written statement to the objection of the Purchaser or Stockholders’ Representative. If after such thirty (30) day period there remains a dispute as to any claims, the Stockholders’ Representative and the Purchaser shall attempt in good faith for thirty (30) days to resolve as promptly as possible any dispute as agree upon the rights of the respective parties with respect to responsibility for, or each of such claims (the amount of, any such matter“Claims Period”).
Appears in 2 contracts
Samples: Merger Agreement (Agrify Corp), Merger Agreement (Agrify Corp)
Indemnification Claims. (a) If either a Purchaser an Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") Party wishes to assert an indemnification claim hereunderhereunder (a “Claim”), the Claimant Indemnified Party shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, responsible Indemnifying Party a written notice (a "“Claim Notice"”) setting forth:
(i) a description of the matter giving rise to the Claim for indemnification,
(ii) Claim, including a reasonably detailed description of all of the facts and circumstances known to Claimant the Indemnified Party giving rise to the Claim, and
(iiiii) a detailed description ofto the extent determinable and based upon facts known to the Indemnified Party at such time, and a reasonable an estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty forty-five (2045) days after receipt of any Claim Notice, the Indemnifying Parties will Party shall (i) acknowledge in writing their its responsibility for all or part of such matter for which indemnification is sought under this Article 11VI, and will either (xA) pay or otherwise satisfy (subject to the terms and conditions of Section 6.04) the portion of such matter as to which responsibility is acknowledged, acknowledged or (yB) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their its obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their its intention to dispute or contest all or part of such responsibility. Upon delivery of such the Indemnifying Party’s notice of its intention to contestcontest the Claim, the parties Parties will negotiate in good faith to resolve as promptly as possible any dispute as to the responsibility for, for or the amount of, of any such mattermatter as promptly as possible. If the Parties fail to resolve such dispute within ninety (90) days of delivery of the notice of intention to contest, either Party may submit such Claim for resolution pursuant to Section 7.12.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Digital Brands Group, Inc.), Membership Interest Purchase Agreement (Digital Brands Group, Inc.)
Indemnification Claims. (a) If either a Purchaser Indemnified Party, on the one hand, Party or a Shareholder Sim Plus Indemnified Party, on the other hand, Party (the "Claimants"each a “Claimant”) wishes to assert an indemnification claim hereunderhereunder (a “Claim”), the Claimant shall deliver to ShareholdersSim Plus, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Sim Plus Indemnified Party, a written notice (a "“Claim Notice"”) setting forth:
(i) a description of the matter giving rise to the Claim for indemnificationClaim,
(ii) a reasonably detailed description of all of the facts and circumstances known to Claimant giving rise to the Claim, and
(iii) a detailed description ofto the extent determinable based on facts known to the Claimant at such date, and a reasonable an estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Sim Plus Indemnified Parties are referred to herein as "“Indemnified Parties," ” and the persons from whom indemnification may be sought pursuant to this Section 11.6 6.5 are referred to as an "“Indemnifying Party")Parties”. Within twenty thirty (2030) days after receipt of any Claim Notice, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 116, and will either (xa) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, acknowledged or (yb) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter.
Appears in 1 contract
Indemnification Claims. (a) If either a Purchaser Subject to the terms of this Agreement, no Persons that may be entitled to be indemnified hereunder (the “Indemnified Party, on ”) shall be entitled to recover any Damages pursuant to the one hand, indemnification obligations set forth in Section 12.2 or a Shareholder Indemnified Party, on 12.3 hereof unless and until the other hand, party or parties liable for such indemnification (the "Claimants"“Indemnifying Party”) wishes to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, receives a written notice (a "Claim Notice"“Notice of Claim”) setting forth:
of a claim for indemnification under Section 12.2 or 12.3, as the case may be (an “Indemnification Claim”) (with a copy to the Escrow Agent, in the case of a Parent Indemnified Party), which in the case of claims for Damages pursuant to the indemnification obligations set forth in Section 12.2 shall constitute notice to all Sellers, stating (i) that an Indemnified Party has actually suffered or incurred Damages for which such Indemnified Party believes in good faith that it may be entitled to indemnification, or believes in good faith that an Indemnified Party could suffer or incur Damages for which such Indemnified Party believes in good faith that it may be entitled to indemnification, (ii) to the matter extent then known by the Indemnified Party, a brief description, in reasonable detail, of the facts, circumstances or events giving rise to the Indemnification Claim for indemnification,
(ii) a detailed description of all of and the facts and circumstances known to Claimant giving rise Damages, to the extent known, forming the basis of such Indemnification Claim), and
including to the extent then known by the Indemnified Party the identity and address of any third-party claimant and copies of any formal demand or complaint, and (iii) the representation, warranty or covenant of this Agreement that may form the basis of such Indemnification Claim. To be valid pursuant to this Section 12.5, a detailed description ofNotice of Claim relating to an Indemnification Claim must be received by the Indemnifying Party prior to the expiration of the representation or warranty forming the basis of such claim, and any delivery or attempted delivery of a reasonable estimate Notice of the total amount of, the monetary amounts actually incurred Claim after such expiration date shall be void and of no force or expected to be incurred for which indemnification is soughteffect.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty (20) days after After receipt of any Claim Noticea Notice of Claim, the Indemnifying Parties will Party shall have thirty (i30) acknowledge business days following such party’s receipt of the Notice of Claim in writing their responsibility for all or part which to deliver notice of objection to such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory claim to the Indemnified Party and the Escrow Agent, in the case of a Parent Indemnified Party. If no objection notice is given within such 30 business day period, then the Indemnification Claim set forth in the related Notice of Claim shall be deemed to provide reasonable security be valid and indemnifiable pursuant hereto, whereupon, in the case of a Seller Indemnified Party, Parent shall deliver to such Seller Indemnified Parties a number of Virgin Opco Partnership Units or other assurances shares of Parent Class A Common Stock, as applicable, equal in value to the amount of the Indemnification Claim set forth in the Resolved Claim Notice, and, in the case of a Parent Indemnified Party, the Escrow Agent shall deliver to such Parent Indemnified Parties (as allocated from the Escrow Shares, in accordance with the Escrow Ratio, then remaining in the Escrow Account pursuant to Section 12.5(c)) Escrow Shares equal in value to the amount of the Indemnification Claim set forth in the Resolved Claim Notice, in each case as valued based on the average of the last reported sales prices of Parent Common Stock as reported by the NYSE for the performance 20 trading days preceding the date of their obligations hereunderthe Resolved Claim Notice. In the event that the Indemnifying Party shall deliver written objection to any Indemnification Claim set forth in a Notice of Claim within the foregoing 30 business day period, and/or then no Indemnified Party shall be entitled to any indemnification payment unless and until such Indemnification Claim is finally resolved by mutual agreement, court order or settlement. In the event that an Indemnified Party and the Indemnifying Party shall mutually agree to resolve a disputed Indemnification Claim in favor of the Indemnified Parties (ii) give or any of them), then, in the case of a Seller Indemnified Party, Parent shall deliver to such Seller Indemnified Parties a number of Virgin Opco Partnership Units equal in value to the amount of the resolved Indemnification Claim and, in the case of a Parent Indemnified Party, the applicable Parent Indemnified Parties and the Sellers Agent shall provide joint written notice (the “Resolved Claim Notice”) of such offset to the Escrow Agent, whereupon the Escrow Agent shall deliver to such Parent Indemnified Parties (as allocated from the Escrow Shares, in accordance with the Escrow Ratio, then remaining in the Escrow Account pursuant to Section 12.5(c)) Escrow Shares equal in value to the amount of the Indemnification Claim set forth in the Resolved Claim Notice, in each case as valued based on the average of the last reported sales prices of Parent Common Stock as reported by the NYSE for the 20 trading days preceding the date of the Resolved Claim Notice. In the event that a disputed Indemnification Claim shall be resolved by court order in favor of the Indemnified Party, in the case of a Seller Indemnified Party, Parent shall deliver to such Seller Indemnified Parties a number of Virgin Opco Partnership Units or Parent Class A Common Stock, as applicable, equal in value to the amount of the resolved Indemnification Claim and, in the case of a Parent Indemnified Party, the Parent Indemnified Party shall be permitted to unilaterally deliver a Resolved Claim Notice (a “Unilateral Resolved Claim Notice”) to the Escrow Agent (with a copy of their intention the court order related thereto), whereupon the Escrow Agent shall deliver to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention Parent Indemnified Parties (as allocated from the Escrow Shares, in accordance with the Escrow Ratio, then remaining in the Escrow Account pursuant to contest, the parties will negotiate Section 12.5(c) Escrow Shares equal in good faith value to resolve as promptly as possible any dispute as to responsibility for, or the amount ofof the Indemnification Claim set forth in the Unilateral Resolved Claim Notice, in each case as valued based on the average of the last reported sales prices of Parent Common Stock as reported by the NYSE for the 20 trading days preceding the date of the court order related thereto.
(c) In the event Parent and the Sellers Agent shall have instructed the Escrow Agent to deliver any Escrow Shares to a Parent Indemnified Party pursuant to Section 12.5(b), such matterEscrow Shares shall be allocated by the Escrow Agent among the Escrow Shares of the Sellers in proportion to their respective pro rata shares of the Seller Consideration and in accordance with the Escrow Ratio.
Appears in 1 contract
Indemnification Claims. 7.10.1 To recover any Loss under the indemnification obligations set forth in Section 7.2 or Section 7.3, an Indemnified Person must deliver to the Indemnifying Person on or before a date no later than one (a1) If either Business Day following the Survival Period a Purchaser certificate signed by any authorized representative of the Indemnified PartyPerson (a “Claim Certificate”) stating that Loss exists with respect to the indemnification obligations set forth in Section 7.2 or Section 7.3, and specifying in reasonable detail (based on the one handinformation then known) the individual items of such Loss included in the amount so stated, and the misrepresentation, breach of warranty, covenant or claim to which such item is related, including the relevant Section of this Agreement.
7.10.2 The Indemnifying Person shall have a Shareholder Indemnified Party, on the other hand, period of forty-five (the "Claimants"45) wishes days from and after delivery of any Claim Certificate to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholdersthe Indemnified Person a response, if a Purchaser Indemnified Party, or to Purchaser, if in which the Claimant is a Shareholder Indemnified Party, a written notice (a "Claim Notice") setting forth:
Indemnifying Person shall: (i) agree that the matter giving rise Indemnified Person is entitled to receive all of the Claim for indemnification,
requested Loss or (ii) dispute that the Indemnified Person is entitled to receive the requested Loss.
7.10.3 If the Indemnifying Person has not delivered a detailed description of all response before the expiration of the facts and circumstances known forty-five (45) day period referred to Claimant giving rise in Section 7.10.2 disputing any claim or claims made in the Claim Certificate, the Indemnified Person shall, subject to the Claimprovisions of this Article 7, andbe entitled to recover such Loss.
7.10.4 If the Indemnifying Person disputes any claim or claims made in any Claim Certificate, the Indemnified Person shall have forty-five (iii45) days to respond in a detailed description of, and a reasonable estimate written statement to the objection of the total amount of, the monetary amounts actually incurred or expected Indemnifying Person. If after such forty-five (45) day period there remains a dispute as to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty (20) days after receipt of any Claim Noticeclaims, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, Person and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate Person shall attempt in good faith for forty-five (45) days to resolve as promptly as possible any dispute as agree upon the rights of the respective parties with respect to responsibility foreach of such claims. If the Indemnifying Person and the Indemnified Person should so agree, or a memorandum setting forth such agreement shall be prepared and signed by Indemnifying Person and the amount of, any such matterIndemnified Person.
Appears in 1 contract
Indemnification Claims. (a) If either Upon receipt by a Purchaser party from whom indemnification is being sought pursuant to Section 9.1 (an “Indemnifying Person”) on or before the Escrow Termination Date of a certificate signed by any officer (an “Officer’s Certificate”) of an Acquiror Indemnified PartyPerson or a Target Indemnified Person (an “Indemnified Person”) stating that Damages exist with respect to the indemnification obligations of set forth in Section 9.1, on and specifying in reasonable detail the one handindividual items of such Damages included in the amount so stated, the date each such item was paid, or a Shareholder Indemnified Partyproperly accrued or arose, on and the other handnature of the misrepresentation, (the "Claimants") wishes breach of warranty, covenant or claim to assert an indemnification claim hereunderwhich such item is related, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (a "Claim Notice") setting forth:
(i) in the matter giving rise case of Damages suffered by an Acquiror Indemnified Person, Acquiror shall, subject to the Claim for indemnification,
provisions of this Section 9, be entitled to receive from the Escrow Fund a portion of such Escrow Fund having a value equal to such Damages and (ii) in the case of Damages suffered by a detailed description of all of the facts and circumstances known to Claimant giving rise Target Indemnified Person, Target France Sub shall, subject to the Claimprovisions of this Section 9, and
(iii) a detailed description of, and a reasonable estimate of the total be entitled to receive an amount of, the monetary amounts actually incurred or expected in cash equal to be incurred for which indemnification is soughtsuch Damages.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "The Indemnifying Party"). Within twenty Person shall have a period of thirty (2030) days from and after receipt delivery of any Claim NoticeOfficer’s Certificate to deliver to the Indemnified Person a response, in which the Indemnifying Parties will Person shall: (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to agree that the Indemnified Party Person is entitled to provide reasonable security receive all of the requested Damages (in which case, if the Indemnified Person is an Acquired Indemnified Person, the response shall be accompanied by written notice executed by Target France Sub instructing the Escrow Agent to disburse the requested Damages to Acquiror) or other assurances for the performance of their obligations hereunder, and/or (ii) give dispute that the Indemnified Person is entitled to receive the requested Damages.
(c) If the Indemnifying Person disputes any claim or claims made in any Officer’s Certificate, the Indemnified Person shall have thirty (30) days to respond in a written notice statement to the Indemnified Party objection of their intention the Indemnifying Person. If after such thirty (30) day period there remains a dispute as to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contestany claims, the parties will negotiate Indemnified Person and the Indemnifying Person shall attempt in good faith for thirty (30) days to resolve as promptly as possible agree upon the rights of the respective parties with respect to each of such claims (the “Claims Period”). If the Indemnified Person and the Indemnifying Person should so agree, a memorandum setting forth such agreement shall be prepared and signed by Acquiror and Target France Sub and, in any dispute as case in which an Acquiror Indemnified Person is the Indemnified Person, such memorandum shall be delivered to responsibility for, or the amount of, Escrow Agent and the Escrow Agent shall be entitled to rely on any such mattermemorandum for the release of any Escrow Amount to Acquiror in accordance with the terms of such memorandum and the Escrow Agreement.
Appears in 1 contract
Indemnification Claims. (a) If either a Purchaser Indemnified Party, on the one handany Indemnitee has incurred or suffered or claims to have incurred or suffered, or believes that it may incur or suffer, Losses for which it is or may be entitled to be indemnified under this ARTICLE VII, such Indemnitee may deliver a Shareholder Indemnified Partynotice to the applicable Indemnifying Party (any such notice being referred to as a “Notice of Indemnification Claim,” and the claim for indemnification described in such Notice of Indemnification Claim being referred to as an “Indemnification Claim”), on the other handwhich shall (i) state that such Indemnitee believes that there is or has been a possible inaccuracy in or breach of a representation, warranty, covenant or obligation contained in this Agreement or that such Indemnitee is otherwise entitled to be indemnified under this ARTICLE VII, (ii) contain a brief description of the "Claimants"circumstances supporting such Indemnitee’s belief that there is or has been such a possible inaccuracy or breach or that such Indemnitee may otherwise be entitled to be indemnified, (iii) wishes contain a good faith, non-binding, preliminary estimate of the aggregate dollar amount of actual and potential Losses that have arisen and may arise as a result of the inaccuracy, breach or other matter referred to assert in such notice (the aggregate amount of such estimate, as it may be modified by such Indemnitee in good faith from time to time, being referred to as the “Claimed Amount”), and (iv) specify the applicable provision of Section 7.2(a) (a “General Indemnity Claim”), Section 7.2(b) (a “Key Stockholder Claim”) or Section 7.3 (a “Buyer Claim”), as applicable, for which the Indemnification Claim described in such notice is being made by such Indemnitee.
(b) During the thirty (30)-day period commencing upon the delivery by an indemnification claim hereunderIndemnitee to the applicable Indemnifying Party of a Notice of Indemnification Claim (the “Dispute Period”), the Claimant applicable Indemnifying Party shall deliver to Shareholders, if the Indemnitee a Purchaser Indemnified written response (the “Response Notice”) in which the Indemnifying Party, : (i) agrees that the full Claimed Amount is owed to the Indemnitee; (ii) agrees that part (but not all) of the Claimed Amount (the “Agreed Amount”) is owed to the Indemnitee; or (iii) asserts that no part of the Claimed Amount is owed to Purchaserthe Indemnitee. Any part of the Claimed Amount that is not agreed by the Indemnifying Party to be owed to the Indemnitee pursuant to the Response Notice (or the entire Claimed Amount, if the Claimant Indemnifying Party asserts in the Response Notice that no part of the Claimed Amount is owed to the Indemnitee) shall be referred to as the “Contested Amount” (it being understood that the Contested Amount shall be modified from time to time to reflect any good faith modifications by the Indemnitee to the Claimed Amount). If a Shareholder Indemnified PartyResponse Notice is not received by the Indemnitee prior to the expiration of the Dispute Period, then the Indemnifying Party shall be conclusively and irrevocably deemed to have agreed that the Claimed Amount is owed to the Indemnitee.
(c) If the Indemnifying Party delivers a written notice Response Notice to the Indemnitee agreeing that the full Claimed Amount is owed to the Indemnitee, or if the Indemnifying Party does not deliver a Response Notice to the Indemnitee during the Dispute Period, then, within three (a "Claim Notice"3) setting forthdays following the delivery of such Response Notice to the Indemnitee:
(i) if the matter giving rise Indemnification Claim is a General Indemnity Claim, then Buyer and Sellers shall instruct the Escrow Agent to release to Buyer from the Escrow Fund the full Claimed Amount, provided, however, that if the General Indemnity Claim exceeds the amount remaining in the Escrow Fund, then, Sellers shall pay, jointly and severally, to the Claim for indemnification,Buyer Indemnitees, the remaining amount of the Claimed Amount;
(ii) if the indemnification claim is a detailed description of all of Key Stockholder Claim, then the facts and circumstances known to Claimant giving rise applicable Key Stockholder shall pay to the ClaimBuyer Indemnitees, andthe full Claimed Amount; or
(iii) if the Indemnification Claim is a detailed description ofBuyer Claim, and a reasonable estimate of the total amount ofthen Buyer shall pay to Sellers, the monetary amounts actually incurred or expected to be incurred for which indemnification is soughtfull Claimed Amount.
(bd) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred If the Indemnifying Party delivers a Response Notice during the Dispute Period to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant Indemnitee agreeing that less than the full Claimed Amount is owed to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty the Indemnitee, then, within three (203) days after receipt following the delivery of any such Response Notice to the Indemnitee:
(i) if the Indemnification Claim Noticeis a General Indemnity Claim, then Buyer and Seller shall instruct the Escrow Agent to release to Buyer from the Escrow Fund the Agreed Amount, provided, however, that if the General Indemnity Claim exceeds the amount remaining in the Escrow Fund, then, Sellers shall pay, jointly and severally, to the Buyer Indemnitees, the remaining amount of the Agreed Amount;
(ii) if the indemnification claim is a Key Stockholder Claim, then the applicable Key Stockholder shall pay to the Buyer Indemnitees, the Agreed Amount; or
(iii) if the Indemnification Claim is a Buyer Claim, then Buyer shall pay to Sellers, the full Agreed Amount.
(e) If the Indemnifying Party delivers a Response Notice to the Indemnitee during the Dispute Period indicating that there is a Contested Amount, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, Party and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate Indemnitee shall attempt in good faith to resolve as promptly as possible the dispute related to the Contested Amount. If the Indemnitee and the Indemnifying Party resolve such dispute in writing, then their resolution of such dispute shall be binding on Sellers, the Key Stockholders, Buyer and the applicable Indemnitee and a settlement agreement stipulating the amount owed to the Indemnitee (the “Stipulated Amount”) shall be signed by the Indemnitee and the Indemnifying Party. Within three (3) days after the execution of such settlement agreement:
(i) If the Indemnification Claim is a General Indemnity Claim, Buyer and Sellers shall instruct the Escrow Agent to release to Buyer from the Escrow Fund the Stipulated Amount, subject to the Cap and the remaining amounts of the Escrow Fund, provided, however, that subject to the Cap if the General Indemnity Claim exceeds the amount remaining in the Escrow Fund, then, Sellers shall pay, jointly and severally, to the Buyer Indemnitees, the remaining amount of the Stipulated Amount;
(ii) if the indemnification claim is a Key Stockholder Claim, then the applicable Key Stockholder shall pay to the Buyer Indemnitees, the Stipulated Amount; or
(iii) if the Indemnification Claim is a Buyer Claim, then Buyer shall pay to Sellers, the full Stipulated Amount.
(f) If the Indemnifying Party and the Indemnitee are unable to resolve the dispute relating to any dispute as to responsibility forContested Amount during the thirty (30)-day period commencing upon the delivery of the Response Notice (the “Initial Resolution Period”), then either the Indemnitee or the Indemnifying Party may submit such dispute to binding arbitration in San Diego County, California in accordance with the JAMS Comprehensive Arbitration Rules and Procedures then in effect. Arbitration will be conducted by one arbitrator, mutually selected by Xxxxxxxxxx and the Indemnifying Party; provided, however, that if Indemnitee and the Indemnifying Party fail to mutually select an arbitrator within fifteen (15) Business Days after such dispute is submitted to arbitration, then the arbitrator shall be selected by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures then in effect. The parties agree to use commercially reasonable efforts to cause the arbitration hearing to be conducted within seventy-five (75) days after the appointment of the arbitrator, and to use commercially reasonable efforts to cause the decision of the arbitrator to be furnished within fifteen (15) days after the conclusion of the arbitration hearing. The parties shall be entitled to only limited discovery at the discretion of the arbitrator, and agree that any discovery shall be completed at least ten (10) days prior to the commencement of the arbitration hearing. The decision of the arbitrator shall relate solely: (i) to whether the Indemnitee is entitled to recover the Contested Amount (or a portion thereof), and the portion of such Contested Amount the Indemnitee is entitled to recover; and (ii) to the determination of whether the Indemnitee is the prevailing party as provided below. The final decision of the arbitrator shall be furnished to the Indemnifying Party and the Indemnitee in writing, shall constitute a conclusive determination of the issues in question, binding upon Sellers, the Key Stockholders, Buyer and the applicable Indemnitee and shall not be contested by any of them. If the Indemnitee is determined by the arbitrator to be the prevailing party, then the aggregate dollar amount ofof the arbitrator’s award to the Indemnitee shall be increased by the amount of the reasonable expenses (including attorneys’ fees) of the Indemnitee, and the fees and expenses associated with the arbitration (including the arbitrator’s fees and expenses). If the Indemnitee is determined by the arbitrator not to be the prevailing party and the arbitrator determines that the Indemnifying Party is the prevailing party, then any amount awarded by the arbitrator to the Indemnitee shall be reduced by the amount of the reasonable expenses (including attorneys’ fees) of the Indemnifying Party, and the fees and expenses associated with the arbitration (including the arbitrator’s fees and expenses), and if no amount is awarded to the Indemnitee, the Indemnitee shall reimburse the Indemnifying Party for its reasonable expenses (including attorneys’ fees) and pay the fees and expenses associated with the arbitration (including the arbitrator’s fees and expenses). Within three (3) days following the receipt of the final award of the arbitrator setting forth the aggregate amount owed to the Indemnitee (the “Award Amount”):
(i) if the Indemnification Claim is a General Indemnity Claim, then Buyer and Sellers shall instruct the Escrow Agent to release to Buyer from the Escrow Fund the Award Amount, subject to the Cap and the remaining amounts of the Escrow Fund, provided, however, that subject to the Cap if the General Indemnity Claim exceeds the amount remaining in the Escrow Fund, then, Sellers shall pay, jointly and severally, to the Buyer Indemnitees, the remaining amount of the Award Amount;
(ii) if the indemnification claim is a Key Stockholder Claim, then the applicable Key Stockholder shall pay to the Buyer Indemnitees, the Award Amount; or
(iii) if the Indemnification Claim is a Buyer Claim, then Buyer shall pay to Sellers, the full Award Amount.
(g) At least five (5) Business Days before the Expiration Date, Buyer shall determine the aggregate amount, as of the Expiration Date, of the Claimed Amounts and Contested Amounts associated with all Indemnification Claims that have not been finally resolved and paid prior to such matterdate (the “Unresolved Claims”) and such Claimed Amounts and Contested Amounts shall continue to be held by the Escrow Agent and remain subject to the Escrow Agreement. Such Claimed Amounts and Contested Amounts are, together, referred to as the “Retained Amount”. Following the Expiration Date, within ten (10) Business Days after the final resolution of all Unresolved Claims and the delivery to all Indemnitees of all amounts to be delivered to such Persons with respect to all Unresolved Claims from the Retained Amount, if any, Buyer shall instruct the Escrow Agent to release the amount, if any, by which the Retained Amount exceeds the aggregate of all amounts delivered to Indemnitees following the Expiration Date (the “Remaining Retained Amount”) from the Escrow Fund to Sellers; subject to the Cap and the amounts remaining in the Escrow Fund, provided, however, that if the Remaining Retained Amount is less than the amount required to be delivered to the Indemnitees with respect to any Unresolved Claim, then Sellers shall, subject to the limitations set forth in this ARTICLE VII, pay, jointly and severally, to the Buyer Indemnitees, the remaining amount due.
(h) Any payment made to an Indemnitee pursuant to this ARTICLE VII shall be treated by the parties hereto, to the extent permitted by applicable Law, for federal income Tax and other applicable Tax purposes, as an adjustment to the cash proceeds received by Sellers in the transaction contemplated by this Agreement.
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Indemnification Claims. (a) If either The Indemnified Party shall give written notification to the Indemnifying Party of the commencement of any Third-Party Action that the Indemnified Party expects may result in a Purchaser Indemnified Partyclaim for indemnification pursuant to this Article VII. For purposes of this Agreement, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") wishes to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (a "Claim Notice") setting forth:
(i) “Indemnifying Party” shall mean (A) in the matter giving rise case of a claim for indemnification by the Buyer, the Company Equityholder Representative on behalf of the Company Equityholders (except for provisions relating to an obligation to make or a right to receive any payments) and (B) in the Claim case of a claim for indemnification,
indemnification by any Company Equityholder, the Buyer and (ii) “Indemnified Party” shall mean (A) in the case of a detailed description of all claim for indemnification against the Buyer, the Company Equityholder Representative on behalf of the facts applicable Company Equityholder or Company Equityholders (except for provisions relating to an obligation to make or a right to receive any payments) and circumstances known to Claimant giving rise to the Claim, and
(iiiB) a detailed description of, and a reasonable estimate of the total amount ofin all other cases, the monetary amounts actually incurred or expected to Buyer. Such notification shall be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within given within twenty (20) calendar days after receipt of any Claim Notice, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice to by the Indemnified Party of their intention notice of such Third-Party Action, and shall describe in reasonable detail (to dispute the extent known by the Indemnified Party) the facts constituting the basis for such Third-Party Action and the amount of the claimed damages; provided, however, that no delay or contest all or failure on the part of such responsibility. Upon delivery the Indemnified Party in so notifying the Indemnifying Party shall relieve the Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matterfailure.
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Indemnification Claims.
(a) If either a Purchaser an Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") Party wishes to assert an indemnification claim hereunderhereunder (a “Claim”), the Claimant Indemnified Party shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, responsible Indemnifying Party a written notice (a "“Claim Notice"”) setting forth:
(i) a description of the matter giving rise to the Claim for indemnification,
(ii) Claim, including a reasonably detailed description of all of the facts and circumstances known to Claimant the Indemnified Party giving rise to the Claim, andand
(iiiii) a detailed description ofto the extent determinable and based upon facts known to the Indemnified Party at such time, and a reasonable an estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty forty-five (2045) days after receipt of any Claim Notice, the Indemnifying Parties will Party shall (i) acknowledge in writing their its responsibility for all or part of such matter for which indemnification is sought under this Article 11VI, and will either (xA) pay or otherwise satisfy (subject to the terms and conditions of Section 6.04) the portion of such matter as to which responsibility is acknowledged, acknowledged or (yB) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their its obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their its intention to dispute or contest all or part of such responsibility. Upon delivery of such the Indemnifying Party’s notice of its intention to contestcontest the Claim, the parties Parties will negotiate in good faith to resolve as promptly as possible any dispute as to the responsibility for, for or the amount of, of any such matter.matter as promptly as possible. If the Parties fail to resolve such dispute within ninety (90) days of delivery of the notice of intention to contest, either Party may submit such Claim for resolution pursuant to Section 7.12.
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Samples: Membership Interest Purchase Agreement (Digital Brands Group, Inc.)
Indemnification Claims. (a) If either a Purchaser an Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, Party (the "Claimants"“Claimant”) wishes to assert an indemnification claim hereunderhereunder (a “Claim”), the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, responsible Indemnifying Party a written notice (a "“Claim Notice"”) setting forth:
forth (i) a description of the matter giving rise to the Claim for indemnification,
(ii) Claim, including a reasonably detailed description of all of the facts and circumstances known to Claimant giving rise to the Claim, and
and (iiiii) a detailed description ofto the extent determinable based on facts known to the Claimant at such date, and a reasonable an estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought. No Claim Notice shall be required for Claims by the Indemnified Triller Parties which arise out of or relate to the Litigation Matter.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty thirty (2030) days after receipt of any Claim Notice, the Indemnifying Parties will Party shall (i) acknowledge in writing their its responsibility for all or part of such matter for which indemnification is sought under this Article 115, and will either (xA) pay or otherwise satisfy (subject to the terms and conditions of Section 5.4) the portion of such matter as to which responsibility is acknowledged, or (yB) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their its obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their its intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties Parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. If the Parties fail to resolve such dispute within ninety (90) days of delivery of the notice of intention to contest, either Party may submit such dispute for resolution pursuant to Section 6.12. The provisions of this Section 5.5(b) shall not apply to Claims made by the Indemnified Triller Parties which arise out of or relate to the Litigation Matter.
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Indemnification Claims. (a) If either a Purchaser Subject to the terms of this Agreement, no Persons that may be entitled to be indemnified hereunder (the “Indemnified Party, on ”) shall be entitled to recover any Damages pursuant to the one hand, indemnification obligations set forth in Section 12.2 or a Shareholder Indemnified Party, on 12.3 hereof unless and until the other hand, party or parties liable for such indemnification (the "Claimants"“Indemnifying Party”) wishes to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, receives a written notice (a "Claim Notice"“Notice of Claim”) setting forth:
of a claim for indemnification under Section 12.2 or 12.3, as the case may be (an “Indemnification Claim”) (with a copy to the Escrow Agent, in the case of a Parent Indemnified Party), which in the case of claims for Damages pursuant to the indemnification obligations set forth in Section 12.2 shall constitute notice to all Sellers, stating (i) that an Indemnified Party has actually suffered or incurred Damages for which such Indemnified Party believes in good faith that it may be entitled to indemnification, or believes in good faith that an Indemnified Party could suffer or incur Damages for which such Indemnified Party believes in good faith that it may be entitled to indemnification, (ii) to the matter extent then known by the Indemnified Party, a brief description, in reasonable detail, of the facts, circumstances or events giving rise to the Indemnification Claim for indemnification,
(ii) a detailed description of all of and the facts and circumstances known to Claimant giving rise Damages, to the extent known, forming the basis of such Indemnification Claim), and
including to the extent then known by the Indemnified Party the identity and address of any third-party claimant and copies of any formal demand or complaint, and (iii) a detailed description ofthe representation, and a reasonable estimate warranty or covenant of this Agreement that may form the total amount of, the monetary amounts actually incurred or expected to basis of such Indemnification Claim. To be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought valid pursuant to this Section 11.6 are referred 12.5, a Notice of Claim relating to as an "Indemnifying Party"). Within twenty (20) days after receipt of any Indemnification Claim Notice, must be received by the Indemnifying Parties will (i) acknowledge in writing their responsibility for all Party prior to the expiration of the representation or part warranty forming the basis of such matter for which indemnification is sought under this Article 11claim, and will either (x) pay any delivery or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon attempted delivery of a Notice of Claim after such notice expiration date shall be void and of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, no force or the amount of, any such mattereffect.
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Indemnification Claims. (a) If either a Purchaser Indemnified Party, on the one hand, or the Shareholders' Representative on behalf of a Shareholder Indemnified Party, on the other hand, (the "Claimants") wishes to assert an indemnification claim hereunderhereunder (an "Indemnification Claim"), the Claimant shall deliver to the Shareholders' Representative, if a Purchaser Indemnified Party, or to the Purchaser, if the Claimant is the Shareholders' Representative on behalf of a Shareholder Indemnified Party, a written notice (a "Claim Notice") setting forth:
forth (i) the matter giving rise to the Claim for indemnification,
Indemnification Claim, (ii) a detailed description of all of the facts and circumstances known to Claimant giving rise to the Indemnification Claim, and
and (iii) a detailed description of, and a reasonable estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 6.6 are referred to as an the "Indemnifying Party")Parties." Where the Indemnified Parties or the Indemnifying Parties are, or are related to, Star+Globe or the Shareholders, the actions described herein shall be taken on their behalf by the Shareholders' Representative. Within twenty (20) days after receipt of any Claim Notice, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 116, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. The Purchaser Reserve Shares or the Star+Globe Holdback Shares, as the case may be, shall be valued for the purpose of any Indemnification Claim at US$0.21 per share.
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Indemnification Claims.
(a) If either a Purchaser an Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, Party (the "Claimants"“Claimant”) wishes to assert an indemnification claim hereunderhereunder (a “Claim”), the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, responsible Indemnifying Party a written notice (a "“Claim Notice"”) setting forth:
(i) a description of the matter giving rise to the Claim for indemnification,
(ii) Claim, including a reasonably detailed description of all of the facts and circumstances known to Claimant giving rise to the Claim, andand
(iiiii) a detailed description ofto the extent determinable based on facts known to the Claimant at such date, and a reasonable an estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty thirty (2030) days after receipt of any Claim Notice, the Indemnifying Parties will Party shall either (i) acknowledge in writing their its responsibility for all or part of such matter for which indemnification is sought under this Article 11ARTICLE VII, and will either (xA) pay or otherwise satisfy (subject to the terms and conditions of this Article VIII) the portion of such matter as to which responsibility is acknowledged, or (yB) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their its obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their its intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter.. If the parties fail to resolve such dispute within ninety (90) days of delivery of the notice of intention to contest, either party may submit such dispute for resolution pursuant to Section 9.14.
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Indemnification Claims. (a) If either To make a Purchaser Indemnified Partyclaim for indemnification under this Section , on Celtron must give written notice of such claim to Opus prior to the one handCut-Off Date. To make a claim for indemnification under this Section , or a an S3 Shareholder Indemnified Party, on must give written notice of such claim to Celtron prior to the other hand, (the "Claimants") wishes to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a Cut-Off Date. The written notice (a "the “Claim Notice"”) setting forth:
of the claim (ithe “Claim) must state in reasonable detail (to the extent then known) the matter giving rise events or circumstances that are the basis for and amount of the Claim. Unless the party receiving the Claim Notice (the ”Indemnitor”) objects in writing within 30 days from receipt of the Claim Notice, the Claim shall be deemed valid, and the amount of the Claim shall be deemed accepted (to the extent of actual Damages set forth in the Claim Notice; the Claim Notice may only identify a Claim with the Damages unspecified or for indemnification,
(ii) a detailed description of all of the facts and circumstances known to Claimant giving rise to the Claim, and
(iii) a detailed description of, and a reasonable estimate of the total amount ofwhich additional Damages are anticipated; in these circumstances, the monetary amounts actually incurred or expected to claiming party (the “Claimant”) must submit additional Claim Notices for additional Damages, which Claim Notices may be incurred for which indemnification is soughtafter the Cut-Off Date).
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred If the Indemnitor objects to herein as "Indemnified Parties," and the persons validity of the Claim and/or the amount of the Claim within 30 days from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty (20) days after receipt of any the Claim Notice, the Indemnifying Parties will Claimant and the Indemnitor shall attempt to resolve their dispute. If they are unable informally to resolve their dispute within 20 days after the date of the Indemnitor’s objection, either the Claimant or the Indemnitor may submit the dispute to arbitration in Los Angeles, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association existing at the date of submission. The arbitrator may resolve the dispute with respect, without limitation, to: (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification whether the Claim is sought under this Article 11, indemnifiable; and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice the value of the Claim. The resolution of any disputed claim by the arbitrator shall be final and binding upon all parties. Judgment on the arbitrator’s award may be rendered in any court of competent jurisdiction. Application may also be made to any court of competent jurisdiction for confirmation of any decision or award of the arbitrator, for an order of enforcement and for any other remedies that may be necessary to effectuate such decision or award. The parties hereto hereby consent to the Indemnified Party jurisdiction of their intention to dispute or contest all or part the arbitrator and the exclusive jurisdiction of such responsibility. Upon delivery court and waive any objection to the jurisdiction of such notice arbitrator and court. The arbitrator shall promptly notify the Claimant and the Indemnitor of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or its determination and the amount ofof the Claim allowed. Notwithstanding the foregoing, each of the Claimant and the Indemnitor may appoint such additional attorneys, accountants and agents to act for it before the arbitrator. The prevailing party in any arbitration hereunder shall be entitled to collect its expenses of enforcement (including reasonable attorneys’ fees) from the non-prevailing party. The arbitrator shall make such matterdetermination based on its determination of what it deems equitable under the circumstances.
(c) If the validity and amount of a Claim by Celtron against Opus are established in accordance with this Section , and subject to the limitations under Section of this Agreement, Celtron shall be entitled to cancel such portion of the Indemnity Shares as shall equal the amount of the Claim divided by the Agreed Share Price. The “
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Indemnification Claims. (a) If either a Purchaser Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") wishes to assert an indemnification claim hereunder, the Claimant shall deliver to ShareholdersShareholder, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (a "Claim Notice") setting forth:
(i) the matter giving rise to the Claim for indemnification,
(ii) a detailed description of all of the facts and circumstances known to Claimant giving rise to the Claim, and
(iii) a detailed description of, and a reasonable estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty (20) days after receipt of any Claim Notice, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter.
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Indemnification Claims. (a) If either a Purchaser Indemnified Partythe Seller or the Buyer, on as the one handcase may be (in such instance, or a Shareholder Indemnified Party, on the other hand, (the "ClaimantsCLAIMANT") wishes to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, indemnifying party a written notice (a "Claim NoticeCLAIM NOTICE") setting forth:
(i) the matter giving rise to the Claim claim for indemnification,
(ii) a detailed description of all of the facts and circumstances known to the Claimant giving rise to the Claimclaim, and
(iii) a detailed description of, and a reasonable estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought. The untimely delivery of a Claim Notice by the indemnified party to the indemnifying party shall relieve the indemnifying party of liability with respect to such Claim only to the extent such indemnifying party has been prejudiced by lack of timely notice with respect to such Claim.
(b) Purchaser Indemnified Parties The Buyer and Shareholder Indemnified Parties the Seller, in the event such party delivers such Claim Notice, are referred to herein as "Indemnified PartiesINDEMNIFIED PARTIES," and the persons from whom indemnification may be sought pursuant to this Section 11.6 Article X are referred to as an "Indemnifying PartyINDEMNIFYING PARTY"). Within twenty (20) days after receipt of any Claim Notice, the Indemnifying Parties Party will (i) acknowledge in writing their its responsibility for all or part of such matter for which indemnification is sought under this Article 11X, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their its obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their its intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter.
(c) If an Indemnification Claim is a third party Claim, (a "THIRD PARTY CLAIM"), the Indemnifying Party will have the right at its expense to assume the defense thereof using counsel reasonably acceptable to the Indemnified Party. The Indemnified Party shall have the right to participate, at its own expense, with respect to any such Third Party Claim. In connection with any such Third Party Claim, the parties shall cooperate with each other and provide each other with reasonable access to relevant books and records in their possession. No such Third Party Claim shall be settled without the prior written consent of the Indemnified Party. If a firm written offer is made to settle any such Third Party Claim and the Indemnifying Party proposes to accept such settlement and the Indemnified Party refuses to consent to such settlement, then: (i) the Indemnifying Party shall be excused from, and the Indemnified Party shall be solely responsible for, all further defense of such Third Party Claim; (ii) the maximum liability of the Indemnifying Party relating to such Third Party Claim shall be the amount of the proposed UNITED STATES settlement if the amount thereafter recovered from the Indemnified Party on such Third Party Claim is greater than the amount of the proposed settlement; and (iii) the Indemnified Party shall pay all attorneys' fees and legal costs and expenses incurred after rejection of such settlement by the Indemnified Party.
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Indemnification Claims. (a) If either a Purchaser Party or Seller Party (the “Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants"”) wishes to assert an indemnification claim hereunderin accordance with this Article X, then, as the Claimant case may be (x) Purchaser (on behalf of itself or another Purchaser Party who is an Indemnified Party) shall deliver to Shareholders, if a Purchaser Indemnified PartySeller Representative, or (y) Seller Representative (on behalf of an Indemnified Party who is a Seller Party) shall deliver to Purchaser, if the Claimant is a Shareholder Indemnified Partyin each case, a written notice (a "“Claim Notice"”) setting forth, to the extent known by the Indemnified Party at such time:
(i) the specific representation, warranty, or covenant alleged to have been breached by such other Party or other indemnifiable matter giving rise to the Claim for indemnification,described in Section 10.01 or Section 10.02, as applicable;
(ii) a reasonably detailed description of all of the facts and circumstances known to Claimant giving rise to the Claimalleged breach of such representation, warranty or covenant or other indemnifiable matter described in Section 10.01 or Section 10.02, as applicable; and
(iii) a detailed description of, and a reasonable an estimate of the total amount of the Damages (to the extent known and calculable) as a direct result of, the monetary amounts actually incurred relating to or expected to be incurred for which indemnification is soughtarising from such alleged breach or other indemnifiable matter described in Section 10.01 or Section 10.02, as applicable.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and Following the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty (20) days after receipt delivery of any a Claim Notice, the Indemnifying Parties will agrees to (iother than with respect to any Third Party Claim) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate engage in good faith negotiations for a period of up to resolve as promptly as possible 30 days to settle the claim that is the subject matter of the Claim Notice; provided, that nothing in this Section 10.05 shall require any dispute as Purchaser Party to responsibility for, accept any settlement offer of Sellers nor limit or otherwise reduce the amount of, of Damages to which any Purchaser Party may be owed in connection with such matterclaim that is the subject matter of the Claim Notice.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (ProFrac Holding Corp.)
Indemnification Claims. (a) If either any Indemnitee has incurred or suffered or claims to have incurred or suffered, or believes that it may incur or suffer, Damages for which it is or may be entitled to be held harmless, indemnified, compensated or reimbursed under this Section 6, such Indemnitee may deliver a Purchaser Indemnified notice to the Indemnifying Party (any such notice being referred to as a “Notice of Indemnification Claim,” and the claim for indemnification, compensation and reimbursement described in such Notice of Indemnification Claim being referred to as an “indemnification claim”), which shall (i) state that such Indemnitee believes that that there is or has been an inaccuracy in or breach of a representation, warranty, covenant or obligation contained in this Agreement or that such Indemnitee is otherwise entitled to be held harmless, indemnified, compensated or reimbursed under this Section 6, (ii) contain a description of the circumstances supporting such Indemnitee’s belief that there is or has been such an inaccuracy or breach or that such Indemnitee may otherwise be entitled to be held harmless, indemnified, compensated or reimbursed and (iii) contain a good faith, non-binding, preliminary estimate of the aggregate dollar amount of actual and potential Damages that have arisen and may arise as a result of the inaccuracy, breach or other matter referred to in such notice (the aggregate amount of such estimate, as it may be modified by such Indemnitee in good faith from time to time, being referred to as the “Claimed Amount”).
(b) During the 20-day period commencing upon the delivery by an Indemnitee to the Representative of a Notice of Indemnification Claim (the “Dispute Period”), the Indemnifying Party shall deliver to the Indemnitee a written response (the “Response Notice”) in which the Indemnifying Party: (i) agrees that the full Claimed Amount is owed to the Indemnitee; (ii) agrees that part (but not all) of the Claimed Amount is owed to the Indemnitee (such amount as is agreed to be owed the “Agreed Amount”); or (iii) asserts that no part of the Claimed Amount is owed to the Indemnitee. Any part of the Claimed Amount that is not agreed by the Indemnifying Party to be owed to the Indemnitee pursuant to the Response Notice (or the entire Claimed Amount, if the Indemnifying Party asserts in the Response Notice that no part of the Claimed Amount is owed to the Indemnitee) shall be referred to as the “Contested Amount” (it being understood that the Contested Amount shall be modified from time to time to reflect any good faith and reasonable modifications by the Indemnitee to the Claimed Amount). If a Response Notice is not sent to the Indemnitee prior to the expiration of the Dispute Period, then the Indemnifying Party shall be conclusively and irrevocably deemed to have agreed that the full Claimed Amount is owed to the Indemnitee. If there is a Contested Amount, the Indemnifying Party and the Indemnitee shall attempt in good faith to resolve the dispute related to the Contested Amount. If the Indemnitee and the Indemnifying Party resolve such dispute in writing, then their resolution of such dispute shall be binding on the Indemnifying Party, Transferor, Acquiror and the other Indemnitees and a settlement agreement stipulating the amount owed to the Indemnitee (the “Stipulated Amount”) shall be signed by the Indemnitee and the Indemnifying Party. Acquiror, on the one hand, or a Shareholder Indemnified PartyTransferor, on the other hand, (in each case as applicable, shall, within 10 days following execution of such settlement agreement, pay the "Claimants") wishes to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (a "Claim Notice") setting forth:
(i) the matter giving rise Stipulated Amount to the Claim for indemnification,
Indemnitee (ii) a detailed description including, as applicable, delivery of all of the facts and circumstances known to Claimant giving rise to the Claim, and
(iii) a detailed description of, and a reasonable estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is soughtClosing Shares).
(bc) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," If the Indemnifying Party and the persons from whom Indemnitee are unable to resolve the dispute relating to any Contested Amount during the 30-day period commencing upon the delivery of the Response Notice, then either the Indemnitee or the Indemnifying Party may submit the contested portion of the indemnification may claim to the court in accordance with Section 7.6. The final award setting forth the aggregate amount owed to the Indemnitee shall be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party")the “Award Amount”. Within twenty (20) days after receipt of any Claim NoticeAcquiror, on the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledgedone hand, or (y) take such Transferor, on the other action hand, in each case as is reasonably satisfactory applicable, shall within 10 days following the entry by the court of the Award Amount, pay the Award Amount to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunderIndemnitee (including, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon as applicable, delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matterClosing Shares).
Appears in 1 contract
Samples: Asset Acquisition Agreement (Panacea Acquisition Corp)
Indemnification Claims. (a) If either a Purchaser Indemnified PartyThe Stockholders and IPL agree that in the event and to the extent that any Stockholder has any liability or obligation to provide indemnification or contribution (collectively, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "ClaimantsIndemnification") wishes to assert for any losses of IPL, its successors or assigns (each an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser "Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (a "Claim NoticePerson") setting forthpursuant to the terms of the Merger Agreement:
(i) the matter giving rise claims of an Indemnified Person in respect of such Stockholder shall be limited to the Claim for indemnification,Deposited Shares and the Escrow Account in respect of such Stockholder and no Indemnified Person shall have any other right, claim or recourse to such Stockholder or the assets of such Stockholder;
(ii) a detailed description to the extent that such losses arise from any obligation for which such Stockholders are jointly and severally liable under the Merger Agreement, and in respect of all which an Indemnified Person is entitled to Indemnification under the Merger Agreement, the right of the facts Indemnified Person to receive such Indemnification in respect of any particular Stockholder regarding any such loss and circumstances known to Claimant giving rise assert any claim against the Deposited Shares and the Escrow Account attributable to such Stockholder hereunder, shall be limited to an amount determined by multiplying: (A) the Claim, amount of such loss for which such Indemnification is required to be provided under the Merger Agreement; by (B) the Stockholder Percentage of such Stockholder; and
(iii) a detailed description ofto the extent that such losses arise from any obligation for which such Stockholders are not jointly or severally liable under the Merger Agreement, and a reasonable estimate in respect of which an Indemnified Person is entitled to Indemnification under 7 the Merger Agreement, the right of an Indemnified Person to receive such Indemnification in respect of any particular Stockholder regarding any such loss and to assert any claim against the Deposited Shares and the Escrow Account attributable to such Stockholder hereunder, shall be limited solely to the Deposited Shares and the Escrow Account attributable to the particular Stockholder having an Indemnification obligation in respect of such loss and no Indemnified Person shall have recourse to, or have any right to make any claim against, receive any payment from, or receive all or any portion of the total amount ofDeposited Shares or the Escrow Account attributable to, the monetary amounts actually incurred any other Stockholder or expected to be incurred for which indemnification is soughtany other assets of any Stockholder.
(b) Purchaser In the event that an Indemnified Parties and Shareholder Indemnified Parties are referred Person believes that it is entitled to herein as "Indemnified Parties," and the persons payment of money for Indemnification from whom indemnification may be sought a Stockholder pursuant to this Section 11.6 are referred the provisions of Article X of the Merger Agreement, such Indemnified Person shall proceed to as assert any such claim (an "Indemnifying PartyIndemnification Claim"). Within twenty ) in the manner set forth in the Merger Agreement.
(20c) days after receipt of The Escrow Agent shall not disburse any Claim Notice, the Indemnifying Parties will amount with respect to any claim for Indemnification made by any Indemnified Person until directed to make a payment pursuant to either: (i) acknowledge a written instruction signed by the Stockholder against which such claim is asserted (the "Subject Stockholder") and the Indemnified Person (it being understood and agreed that, in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledgedevent that a Stockholder agrees in writing, or (y) take such other action it is determined by a final, binding non-appealable order or judgment of a court of competent jurisdiction, that he is obligated to provide a specified amount as is reasonably satisfactory Indemnification to an Indemnified Person pursuant to the Indemnified Party to terms of Article X of the Merger Agreement, then such Stockholder shall also provide reasonable security the notice contemplated herein); or other assurances for the performance of their obligations hereunder, and/or (ii) give a certificate signed by the Stockholders and IPL stating that the claim has been resolved pursuant to a final, binding non-appealable order or judgment of a court of competent jurisdiction.
(d) In the event that the Escrow Agent is required to make any payment in respect of a Subject Stockholder to any Indemnified Person pursuant to the terms of Section 5(c) above, then such payment shall be made by the Escrow Agent subject to and in accordance with the following procedure:
(i) the Escrow Agent shall make such payment on the fifth (5th) Business Day (provided that in the event of a Cash Substitution or Stock Substitution during such period with respect to which a Section 3 Objection or Section 4 Objection is given, then the date will be the fifth day following the date such objection is resolved or as soon as thereafter practicable pursuant to Section 11 hereof) following the occurrence of the 8 first to occur of the events contemplated in Section 5(c)(i) or (ii), (the "Payment Date");
(ii) during the four (4) Business Days prior to the Payment Date the Subject Stockholder may, at its option, engage in a Cash Substitution or Stock Substitution by giving a Cash Substitution Notice or a Stock Substitution Notice pursuant to Section 3 or 4 hereof and the Payment Date will be appropriately extended to the minimum extent necessary to permit such Cash Substitution or Stock Substitution to occur;
(iii) the Subject Stockholder may, at its option by written notice to the Escrow Agent, who shall deliver a copy to the Indemnified Party Person no later than one Business Day after receipt thereof, given not less than four (4) Business Days prior to the Payment Date, elect to have any amount to be paid hereunder, paid in either cash from the Escrow Account, Deposited Shares, or a combination thereof (provided that in the event of their intention the failure of the Escrow Agent to dispute or contest all or part of such responsibility. Upon delivery of receive any such notice prior to the fifth day preceding the Payment Date, such payment will be made first in cash from the Escrow Account and then from the Deposited Shares);
(iv) for the purpose of intention to contestmaking any payment in Deposited Shares, the same shall be valued at Market Value determined as of the close of business on the fourth day preceding the Payment Date; and
(v) in executing funds transfers, the Escrow Agent will rely upon account numbers or other identifying numbers of a Stockholder or Indemnified Person or its bank, rather than names. The Escrow Agent shall not be liable for any loss, liability or expense resulting from any error made by a Stockholder or Indemnified Person with respect to an account number or other identifying number provided it has accurately followed written instructions from the Stockholder or Indemnified Person in accordance with the disbursement provisions set forth above. The Escrow Agent will confirm the instructions set forth in such written instructions with the authorized individuals making such request at the authorized telephone numbers appearing above each such individual's name. The Escrow Agent will verify by telephone all payment orders unless they call for a transfer to a pre-identified account.
(e) Notwithstanding anything to the contrary contained herein, the Stockholders and IPL will not take any action pursuant to this Agreement which would constitute or result in any assignment of a Federal Communications Commission ("FCC") license or any change of control of any FCC licensee, whether de facto or de jure, if such assignment of license or change of 9 control would require under then existing law (including the written rules and regulations promulgated by the FCC), the prior approval of the FCC, without first obtaining such approval of the FCC. The parties hereto hereby agree that voting rights in the Deposited Shares transferred to IPL hereunder will negotiate remain in good faith each Stockholder unless any required approval of the FCC shall be obtained to resolve the transfer of voting rights. The Stockholders hereby agree to take such action as promptly as possible IPL may reasonably request in order to complete any dispute as transfer of Deposited Shares contemplated hereby, including specifically, at IPL's cost and expense, the use of each Stockholders reasonable efforts to responsibility forassist in obtaining the approval of the FCC for any action or transaction contemplated hereby which is then required by law, and specifically, without limitation, upon request, to prepare, sign and file with the FCC the assignor's or transferor's portion of any application or applications for consent to the assignment of license or transfer of control necessary or appropriate under the FCC's rules and regulations for approval of (a) any sale or sales of Deposited Shares by or on behalf of the Escrow Agent pursuant hereto, or (b) any assumption by IPL of voting rights or management rights in the amount of, any such matterDeposited Shares effected in accordance herewith.
Appears in 1 contract
Indemnification Claims. (a) If either a Purchaser Indemnified Party, on the one handany Indemnitee has incurred or suffered or claims to have incurred or suffered, or believes that it may incur or suffer, Damages for which it is or may be entitled to be held harmless, indemnified, compensated or reimbursed under this Section 4, such Indemnitee may deliver a Shareholder Indemnified Party, on notice to the other hand, Indemnitor (the "Claimants") wishes any such notice being referred to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (as a "Notice of Indemnification Claim," and the claim for indemnification, compensation and reimbursement described in such Notice of Indemnification Claim Noticebeing referred to as an ") setting forth:
Indemnification Claim"), which shall (i) the matter giving rise state that such Indemnitee believes that that there is or has been a possible inaccuracy in or breach of a representation, warranty, covenant or obligation contained in this Agreement or that such Indemnitee is otherwise entitled to the Claim for indemnification,
be held harmless, indemnified, compensated or reimbursed under this Section 4, (ii) contain a detailed brief description of all of the facts circumstances supporting such Indemnitee's belief that there is or has been such a possible inaccuracy or breach or that such Indemnitee may otherwise be entitled to be held harmless, indemnified, compensated or reimbursed, and circumstances known to Claimant giving rise to the Claim, and
(iii) contain a detailed description ofgood faith, and a reasonable non-binding, preliminary estimate of the total aggregate dollar amount ofof actual and potential Damages that have arisen and may arise as a result of the inaccuracy, breach or other matter referred to in such notice (the monetary amounts actually incurred or expected aggregate amount of such estimate, as it may be modified by such Indemnitee in good faith from time to be incurred for which indemnification is soughttime, being referred to as the "Claimed Amount").
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred In the event that the Indemnitee has delivered a Notice of Indemnification Claim to herein as "Indemnified Parties," the Indemnitor, the Indemnitor shall have ten (10) days to deliver a written objection to the Claimed Amount set forth in the Notice of Indemnification Claim. If the Indemnitor timely delivers such a written objection to the Indemnitee, the Indemnitee and the persons from whom indemnification may be sought pursuant Indemnitor shall use commercially reasonable efforts to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty resolve any such objections, but if a final resolution is not obtained within thirty (2030) days after receipt of any Claim Noticethe Indemnitor has submitted its objections, the Indemnifying Parties will (i) acknowledge Indemnitee and the Indemnitor shall submit the matter to non-binding mediation in writing their responsibility for all or part of a manner to be agreed to between the Indemnitee and the Indemnitor. If the Indemnitor does not deliver a written objection within such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contesttime period, the parties will negotiate Indemnitee shall be entitled at such time to any amounts due and payable pursuant to such Claimed Amount in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matteraccordance with this Section 4.
Appears in 1 contract
Indemnification Claims. (a) If either a Purchaser an Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, Party (the "Claimants"“Claimant”) wishes to assert an indemnification claim hereunderhereunder (a “Claim”), the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, responsible Indemnifying Party a written notice (a "“Claim Notice"”) setting forth:
forth (i) a description of the matter giving rise to the Claim for indemnification,
(ii) Claim, including a reasonably detailed description of all of the facts and circumstances known to Claimant giving rise to the Claim, and
and (iiiii) a detailed description ofto the extent determinable based on facts known to the Claimant at such date, and a reasonable an estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty thirty (2030) days after receipt of any Claim Notice, the Indemnifying Parties will Party shall (i) acknowledge in writing their its responsibility for all or part of such matter for which indemnification is sought under this Article 115, and will either (xA) pay or otherwise satisfy (subject to the terms and conditions of Section 5.4) the portion of such matter as to which responsibility is acknowledged, or (yB) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their its obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their its intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties Parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. If the Parties fail to resolve such dispute within ninety (90) days of delivery of the notice of intention to contest, either Party may submit such dispute for resolution pursuant to Section 6.12.
Appears in 1 contract
Indemnification Claims. (a) If either a Purchaser Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") wishes to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (a "Claim Notice") setting forth:
(i) the matter giving rise In order to seek indemnification under Section 9.02(a), Parent shall deliver an Officer’s Certificate to the Claim Securityholder Representative at any time on or before 11:59 p.m. Mountain Time on the applicable Survival Date. In addition, the Indemnified Parties may seek indemnification for indemnification,
(ii) a detailed description of all of the facts and circumstances known to Claimant giving rise or with respect to the Claimmatters set forth in Section 9.02(b), and
(iiic), (d) and (e) and for Losses related to any fraud, intentional misrepresentation or willful breach by delivering an Officer’s Certificate to the Securityholder Representative at any time. Unless the Securityholder Representative shall have timely delivered an Objection Notice pursuant to Section 9.03(b) hereof, Parent may permanently retain and remove from the Holdback Account an amount equal to the Loss set forth in such Officer’s Certificate. Any payment or retention from the Holdback Account to Indemnified Parties shall be deemed to have been made by the Company Shareholders. For the purposes hereof, “Officer’s Certificate” shall mean a detailed description ofcertificate signed by any officer of Parent: (1) stating that an Indemnified Party has paid, sustained, incurred, or properly accrued, or reasonably anticipates that it will have to pay, sustain, incur, or accrue Losses, (2) setting forth the amount of claimed Losses to the extent such information is reasonably available or can reasonably be estimated and a (3) specifying in reasonable estimate detail the individual items of Losses included in the total amount ofso stated, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty (20) days after receipt of any Claim Noticedate each such item was paid, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11sustained, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledgedincurred, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility forproperly accrued, or the amount ofbasis for such anticipated liability, any and the nature of the misrepresentation, breach of warranty or covenant or other indemnity to which such matteritem is related.
Appears in 1 contract
Samples: Merger Agreement (Helix TCS, Inc.)
Indemnification Claims. (a) If either a Purchaser Indemnified Party, on the one handany Indemnitee has incurred or suffered or claims to have incurred or suffered, or believes that it may incur or suffer, Damages for which it is or may be entitled to be held harmless, indemnified, compensated or reimbursed under this Article 7, such Indemnitee may deliver a Shareholder Indemnified Party, on notice to the other hand, Indemnitor (the "Claimants") wishes any such notice being referred to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (as a "Notice of Indemnification Claim," and the claim for indemnification, compensation and reimbursement described in such Notice of Indemnification Claim Noticebeing referred to as an ") setting forth:
Indemnification Claim"), which shall (i) the matter giving rise state that such Indemnitee believes that that there is or has been a possible inaccuracy in or breach of a representation, warranty, covenant or obligation contained in this Agreement or that such Indemnitee is otherwise entitled to the Claim for indemnification,
be held harmless, indemnified, compensated or reimbursed under this Article 7, (ii) contain a detailed brief description of all of the facts circumstances supporting such Indemnitee's belief that there is or has been such a possible inaccuracy or breach or that such Indemnitee may otherwise be entitled to be held harmless, indemnified, compensated or reimbursed, and circumstances known to Claimant giving rise to the Claim, and
(iii) contain a detailed description ofgood faith, and a reasonable non-binding, preliminary estimate of the total aggregate dollar amount ofof actual and potential Damages that have arisen and may arise as a result of the inaccuracy, breach or other matter referred to in such notice (the monetary amounts actually incurred or expected aggregate amount of such estimate, as it may be modified by such Indemnitee in good faith from time to be incurred for which indemnification is soughttime, being referred to as the "Claimed Amount").
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred In the event that the Indemnitee has delivered a Notice of Indemnification Claim to herein as "Indemnified Parties," the Indemnitor, the Indemnitor shall have ten (10) days to deliver a written objection to the Claimed Amount set forth in the Notice of Indemnification Claim. If the Indemnitor timely delivers such a written objection to the Indemnitee, the Indemnitee and the persons from whom indemnification may be sought pursuant Indemnitor shall use commercially reasonable efforts to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty resolve any such objections, but if a final resolution is not obtained within thirty (2030) days after receipt of any Claim Noticethe Indemnitor has submitted its objections, the Indemnifying Parties will (i) acknowledge Indemnitee and the Indemnitor shall submit the matter to non-binding mediation pursuant to Section 9.6 hereto. If the Indemnitor does not deliver a written objection within such time period, the Indemnitee shall be entitled at such time to any amounts due and payable pursuant to such Claimed Amount in writing their responsibility for all or part of such matter for which indemnification is sought under accordance with this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter7.
Appears in 1 contract
Samples: Asset Purchase Agreement (Chanticleer Holdings, Inc.)
Indemnification Claims. (a) If either After receiving notice of a Purchaser Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") wishes claim as to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (a "Claim Notice") setting forth:
(i) the matter giving rise to the Claim for indemnification,
(ii) a detailed description of all of the facts and circumstances known to Claimant giving rise to the Claim, and
(iii) a detailed description of, and a reasonable estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification indemnity may be sought pursuant to this Article VIII with respect to any action, lawsuit, proceeding, investigation or other claim brought against it by a Person who is not a party (a “Third Party Claim”), the Buyer will notify the Seller of such claim as promptly as reasonably practicable. Each such notice will be in writing and will describe with reasonable specificity, to the extent then known by the Buyer, the nature of such claim and will indicate the estimated amount, to the extent then known Buyer and if reasonably practicable, of the Damages that have been or may be sustained by the Buyer Indemnified Parties, based on the facts known to the Buyer as of such date. Thereafter, the Buyer will deliver to the Seller, reasonably promptly after the Buyer’s receipt thereof, copies of all notices and court papers received by the Buyer relating to the Third Party Claim. The Buyer’s failure or delay in providing the notices and court papers described in this paragraph (a) will not relieve the Seller of its obligations under this Article VIII, except to the extent that the Seller is materially prejudiced as a result thereof.
(b) The Seller will have the right to participate in the defense of such Third Party Claim at the Seller’s expense, or at its option (subject to the limitations set forth in this Section 11.6 are referred 8.03(b)) to assume the defense thereof with counsel selected by the Seller; provided, however, that:
(i) The Seller may only assume control of such defense if the Seller acknowledges in writing to the Buyer that any damages, fines, costs or other Liabilities that may be assessed against the Buyer in connection with such Third Party Claim constitute Damages for which the Seller shall fully indemnify the Buyer pursuant to this Article VIII;
(ii) The Seller must give the Buyer written notice of its election to assume control of the defense of the Third Party Claim as an "Indemnifying Party"). Within promptly as possible (but in any case within twenty (20) days after of the Seller’s receipt of any notice of the Third Party Claim, or sooner, if the nature of the Third Party Claim Noticeso requires). If the Seller assumes the defense of the Third Party Claim, the Indemnifying Parties Seller will (i) acknowledge in writing their responsibility for all or part of engage legal counsel reasonably satisfactory to the Buyer to defend such matter for which indemnification is sought under this Article 11claim, and will either (x) pay or otherwise satisfy with the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as parties agreeing that Xxxxxx & Xxxxxxx LLP is reasonably satisfactory to the Indemnified Buyer, and will not admit any liability with respect to, permit a default or consent to the entry of any judgment, or settle, compromise or discharge, any Third Party Claim without the prior written consent of the Buyer (such consent not to provide be unreasonably withheld, conditioned or delayed);
(iii) If Seller is entitled to and assumes the defense of the Third Party Claim pursuant to this Section, the Buyer will be entitled to participate in the defense of the Third Party Claim at its own cost and expense; provided, however, that the Buyer will be entitled to participate in any such defense with separate counsel at the expense of the Seller if (A) so requested by the Seller, (B) in the reasonable security opinion of counsel to the Buyer made in good faith, there are legal defenses available to the Buyer that are different from or additional to those available to the Seller, or (C) in the reasonable opinion of counsel to the Buyer made in good faith, a conflict of interest exists between the Seller and the Buyer that would make such separate representation advisable;
(iv) Notwithstanding anything in this Section 8.02 to the contrary, the Buyer will have the right to conduct and control, through counsel of its choosing the defense, compromise and settlement of any Third Party Claim that (A) seeks an injunction or other assurances equitable relief (except where non-monetary relief is both immaterial and incidental to a primary claim or claims for monetary damages) against the performance Buyer or any of their obligations hereunderits subsidiaries (including the Acquired Companies), and/or (B) involves the Seller and in the reasonable opinion of counsel to the Buyer made in good faith a conflict of interest exists between the Seller and the Buyer that would make the assumption of the defense by Buyer advisable, (C) involves a claim made by a Governmental Entity or criminal charges, (D) involves material Intellectual Property rights of any Acquired Company, (E) has had or, in the event of an adverse resolution, would reasonably be expected to have a material and adverse effect on the Acquired Companies’ business, taken as a whole, including without limitation its relationships with its suppliers, vendors, licensors, and customers, (F) asserts or would reasonably be expected to result in Damages that, without duplication, together with the estimated costs of defense thereof and the Claimed Amount with respect to any unresolved claims for indemnification then pending, would exceed the amount for which Seller is liable for indemnification under this Article VIII, or (G) is not being competently defended by Seller (and such failure to competently defend such Third Party Claim has not been cured within a reasonable period of time after written notice of the same from Buyer). Except as provided in Section 8.02(e)in the event that the Buyer will have validly assumed the defense of a Third Party Claim, the Buyer will not admit any liability with respect to, permit a default or consent to the entry of any judgment, or settle, compromise or discharge, any Third Party Claim without the prior written consent of the Seller (such consent not to be unreasonably withheld, conditioned or delayed); and
(v) Notwithstanding any provision of this Section 8.02 to the contrary, any Tax matter will be subject to the applicable provisions of Article IX.
(c) The party controlling the defense of such Third Party Claim will keep the other party reasonably advised of the status of such Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. The Non-controlling Party will furnish the Controlling Party with such information as it may reasonably request with respect to such Third Party Claim (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and will otherwise reasonably cooperate with and assist the Controlling Party in the defense of such Third Party Claim.
(d) In order to seek indemnification under this Article VIII (including for any claim that does not result from a Third Party Claim), the Buyer shall deliver a Claim Notice to the Seller. Within 30 days after delivery of a Claim Notice, the Seller shall deliver to the Buyer a written response, in which Seller shall: (i) agree that the Buyer is entitled to receive all of the Claimed Amount, in which case the response shall be accompanied by a letter from the Seller instructing the Escrow Agent to disburse to the Buyer from the Escrow Fund an amount in cash equal to the Claimed Amount, (ii) give written notice agree that the Buyer is entitled to receive the Agreed Amount (in which case the response shall be accompanied by a letter from the Seller instructing the Escrow Agent to disburse to the Buyer from the Escrow Fund an amount in cash equal to the Agreed Amount) or (iii) dispute that the Buyer is entitled to receive any of the Claimed Amount. If no response is delivered by the Seller within such 30-day period, the Seller shall be deemed to have agreed that all of the Claimed Amount is owed to the Buyer. Acceptance by the Buyer of partial payment of any Claimed Amount shall be without prejudice to the Buyer’s right to claim the balance of any such Claimed Amount.
(e) Notwithstanding the other provisions of this Section 8.02, if a third party asserts (other than by means of a lawsuit) that any Buyer Indemnified Party is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which a Buyer Indemnified Party may be entitled to indemnification pursuant to this Article VIII, and the Buyer reasonably determines that it has a valid business reason that is material to the Buyer and its Subsidiaries (including the Acquired Companies) to fulfill such obligation, then (i) the Buyer shall be entitled to satisfy such obligation, using reasonable efforts to provide prior notice to, but without consent from, the Seller prior to satisfying such obligation, (ii) the Buyer may subsequently make a claim for indemnification in accordance with the provisions of their intention this Article VIII, and (iii) the Buyer shall be reimbursed, in accordance with the provisions of this Article VIII, for any such Damages for which it is entitled to indemnification pursuant to this Article VIII (subject to the right of the Seller to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention the applicable Buyer Indemnified Party’s entitlement to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility forindemnification, or the amount offor which it is entitled to indemnification, under the terms of this Article VIII).
(f) The amount of indemnification to which the Buyer will be entitled pursuant to this Section 8.02 will be determined (i) by the written agreement of the Buyer and Seller, (ii) by a final judgment or decree of any such mattercourt of competent jurisdiction, subject to Section 13.10, (iii) in accordance with Section 8.02(d) or (iv) by any other means to which the Parties will agree in writing. The judgment or decree of a court will be deemed final when the time for appeal, if any, will have expired and no appeal will have been taken or when all appeals taken will have been finally determined. In the event of any dispute regarding the Buyer’s right to indemnification from the Escrow Fund, the Seller and the Buyer shall deliver to the Escrow Agent, promptly following the resolution of the dispute (whether by mutual agreement, judicial decision or otherwise), a written notice executed by both parties instructing the Escrow Agent as to what (if any) portion of the Escrow Fund shall be distributed to the Buyer (which notice shall be consistent with the terms of the resolution of the dispute).
Appears in 1 contract
Samples: Stock Purchase Agreement (Progress Software Corp /Ma)
Indemnification Claims. (ai) If either a Purchaser Parent Indemnified PartyParty is of the opinion that it has or may acquire a right to indemnification under this ARTICLE 8 (each, on an “Indemnification Claim”), such Parent Indemnified Party shall so notify the one handRepresentative in a written notice, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") wishes to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser signed by such Parent Indemnified Party, or any officer thereof (each, an “Officer’s Certificate”) delivered on or prior to Purchaserthe expiration of the Survival Period (or such longer period applicable to such representation and warranty as set forth above): (i) stating that such Indemnified Party has directly or indirectly paid, sustained or incurred any Damages, or reasonably anticipates that it will directly or indirectly pay, sustain or incur any Damages; (ii) specifying in reasonable detail the individual items of Damages included in the amount so stated (and the method of computation of each such item of Damages, if applicable), the Claimant is date each such item of Damages was paid, sustained or incurred, or the basis for such reasonably anticipated Damages; (iii) a Shareholder brief description in reasonable detail (to the extent available to such Parent Indemnified Party) of the facts, a written notice circumstances or events giving rise to each item of Damages based on such Parent Indemnified Party’s good faith belief thereof, including the identity and address of any third-party claimant and copies of any formal demand or complaint relating thereto; and (a "Claim Notice"iv) setting forth:the basis for indemnification under Section 8.2 to which such item of Damages is related (including, if applicable, the specific nature of the misrepresentation, or the breach of warranty or covenant). Following the delivery of an Officer’s Certificate, the Representative and its representatives and agents shall, except as otherwise prohibited by applicable Law, be given access during normal business hours (including electronic access, to the extent available) as they may reasonably require to the books and records of the Surviving Corporation and access during normal business hours to such personnel or representatives of the Surviving Corporation and Parent, including the individuals responsible for the matters that are subject of the Officer’s Certificate, as they may reasonably require for the purposes of resolving any disputes or responding to any matters or inquiries raised in the Officer’s Certificate.
(ii) If the Representative shall not object in writing pursuant to Section 8.2(c)(iii) to any individual items of Damages set forth in an Officer’s Certificate delivered by Parent pursuant to Section 8.2(c)(i) within 30 days after the Representative’s receipt of such Officer’s Certificate, the Representative shall be conclusively deemed to have acknowledged and irrevocably consented, for and on behalf of the Indemnifying Parties, to the Parent Indemnified Party recovery of the full amount of all such items of Damages set forth in such Officer’s Certificate solely to the extent that such Damages do not exceed the Escrow Fund at such time. Upon receipt of any Officer’s Certificate, the Escrow Agent shall not release any portion of the Escrow Fund to Parent or any other Parent Indemnified Party or Parties pursuant to this Agreement or the Escrow Agreement unless and until (i) the matter giving rise Escrow Agent shall have received written authorization from the Representative to release any portion of the Claim for indemnification,
Escrow Fund, or (ii) a detailed description the Representative shall have failed to object in writing pursuant to Section 8.2(c)(iv) to any individual items of all Damages set forth in such Officer’s Certificate within 30 days after the Representative’s receipt of the facts and circumstances known to Claimant giving rise to the Claim, andsuch Officer’s Certificate.
(iii) a detailed description of, and a reasonable estimate In the event that the Escrow Agent shall receive written authorization from the Representative to release to Parent or any other Parent Indemnified Party or Parties any portion of the total amount ofEscrow Fund pursuant to Section 8.2(c)(i), the monetary amounts actually incurred Escrow Agent shall release such portion of the Escrow Fund in accordance with such written instructions. In the event that the Representative shall have failed to object in writing pursuant to Section 8.2(c)(iv) to any individual items of Damages set forth in an Officer’s Certificate relating to a claim for indemnification pursuant to Section 8.2 within 30 days after the Representative’s receipt of such Officer’s Certificate, the Escrow Agent shall promptly release to Parent or expected any other Parent Indemnified Party or Parties (as instructed by Parent in writing) from the Escrow Fund an amount of cash equal to the amount of all such items of Damages specified in such Officer’s Certificate with respect to which the Representative has not objected in writing pursuant to Section 8.2(c)(iv). Any cash released to Parent or any other Parent Indemnified Party or Parties pursuant to the preceding sentence shall be incurred for which indemnification is soughtdeemed to reduce each Indemnifying Party’s interest in the Escrow Fund in accordance with his, her or its Pro Rata Share of the Escrow Fund.
(biv) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred In the event that the Representative shall seek to herein as "Indemnified Parties," and the persons contest any individual items of Damages set forth in an Officer’s Certificate received from whom indemnification may be sought Parent pursuant to this Section 11.6 are referred to as an "Indemnifying Party"8.2(c)(i). Within twenty (20) , the Representative shall notify Parent in writing, within 30 days after receipt of any Claim Noticesuch Officer’s Certificate, of the Indemnifying Parties will (i) acknowledge Representative’s objection, which notice shall set forth a brief description in writing their responsibility reasonable detail of the Representative’s basis for all or part objecting to each item of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy Damages based on the portion Representative’s good faith belief thereof. Upon Parent’s receipt of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory a written notice of objection from the Representative pursuant to the Indemnified Party to provide reasonable security or other assurances for preceding sentence, Parent and the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate Representative shall attempt in good faith to resolve as promptly as possible agree upon the rights of the respective parties with respect to the disputed items of Damages. If the Representative and Parent should so agree, a memorandum setting forth the agreement reached by the parties with respect to such disputed items of Damages shall be prepared and signed by both 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 dispute as such memorandum and make distributions from the Escrow Fund in accordance with the instructions set forth in any such memorandum.
(v) If within 60 days after the Representative’s receipt of such Officer’s Certificate, and after good faith negotiations, the parties are unable to responsibility foragree on the rights of the respective parties with respect to any disputed items of Damages set forth in an Officer’s Certificate, either Parent or the amount of, Representative may submit any such matterdispute for resolution pursuant to the provisions of Section 10.9. The decision resulting therefrom shall be nonappealable, binding and conclusive upon the parties to this Agreement and the Escrow Agent shall be entitled to act in accordance with such decision and the Escrow Agent shall distribute the Escrow Fund in accordance therewith. Judgment upon any award rendered pursuant to the provisions of Section 10.9 may be entered in any court having jurisdiction. Notwithstanding anything to the contrary in this Agreement, this Section 8.2(c)(v) shall be subject to the terms and conditions of the Escrow Agreement.
Appears in 1 contract
Indemnification Claims. (a) If either a Purchaser Subject to the limitations set forth in Section 5.4, if an Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") Party wishes to assert make an indemnification claim hereunder(a “Claim”) under this Article V, the Claimant such Indemnified Party shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (a "“Claim Notice"”) on or prior to the applicable Expiration Date to the Xxxx Group (i) stating that an Indemnified Party has paid, incurred, suffered or sustained, or reasonably anticipates that it may pay, incur, suffer or sustain Losses, and (ii) describing the Claim. Parent may update a Claim Notice from time to time to reflect any new information discovered with respect to the claim set forth in such Claim Notice.
(b) If the Xxxx Group shall not object in writing within the thirty (30) day period after receipt of a Claim Notice (the “Objection Period”) by delivery of a written notice of objection containing a reasonably detailed description of the facts and circumstances supporting an objection to the applicable Claim (an “Objection Notice”), such failure to so object shall be an irrevocable acknowledgment by the Xxxx Group that the Indemnified Party is entitled to the full amount of the claim for Losses set forth in such Claim Notice. In such event, Parent shall be entitled to recover as set forth in Section 5.4(c).
(c) In the event that the Xxxx Group shall deliver an Objection Notice in accordance with Section 5.5(b) within the Objection Period, the Xxxx Group and Parent shall attempt in good faith to agree upon the rights of the respective parties with respect to the applicable Claim within the thirty (30) day period following delivery of such Objection Notice (the “Dispute Period”). If the Xxxx Group and Parent should so agree, a memorandum setting forthforth such agreement shall be prepared and signed by both parties and Parent shall be entitled to recover such Losses as set forth in Section 5.4(c).
(d) If no agreement can be reached with respect to the amount of Losses with respect to a Claim after good faith negotiation and prior to the end of the Dispute Period:
(i) with respect to any portion thereof to which the matter giving rise parties do not dispute, then (A) a memorandum setting forth the parties agreement with respect to the Claim for indemnification,such portion shall be prepared and signed by both parties and Parent shall be entitled to recover such Losses as set forth in Section 5.4(c); and
(ii) a detailed description with respect to any portion thereof to which the parties continue to dispute, such dispute shall be resolved in accordance with the terms of all of the facts and circumstances known to Claimant giving rise to the Claim, and
(iii) a detailed description of, and a reasonable estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is soughtthis Agreement.
(be) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and In the persons from whom event Parent becomes aware of a third party claim (a “Third Party Claim”) which Parent reasonably believes may result in a demand for indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty (20) days after receipt of any Claim NoticeArticle V, Parent shall notify the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part Xxxx Group of such matter for which indemnification is sought Third Party Claim (it being understood that no delay in providing such notice shall prejudice Parent’s rights under this Article 11V). The Xxxx Group shall be entitled, at its expense, to participate in, and will either (x) pay or otherwise satisfy subject to the portion limitations set forth in this Section 5.5(e), shall be entitled to determine and conduct, the defense of such matter as Third Party Claim, including any Third Party Claim for Pre-Closing Income Taxes; provided that, subject to which responsibility is acknowledged, or (y) take the limitations set forth in Section 5.4 the Xxxx Group shall be fully responsible for all liabilities relating to such other action as is reasonably satisfactory claim for indemnification up to the limits set forth herein and that they will provide full indemnification to the Indemnified Party with respect to provide reasonable security such Action or other assurances claim giving rise to such claim for indemnification hereunder; provided further that the performance Xxxx Group shall not be entitled to assume control of their obligations hereundersuch defense if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, and/or action, indictment, allegation or investigation, (ii) give written notice to the claim seeks an injunction or other equitable relief against the Indemnified Party, (iii) the Indemnified Party reasonably believes that the Losses relating to such claim could exceed the maximum amount that the Indemnified Party could then be entitled to recover under the applicable provisions of their intention this Article V, or (iv) the claim, in the reasonable judgment of Parent, would be likely to dispute have a material and adverse effect on the business, operations, financial or contest all other condition of Bioventus and its Subsidiaries (including the Company). If the Xxxx Group shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 5.5(e), (i) the Xxxx Group shall obtain the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, delayed or part conditioned) before entering into any settlement of such responsibilityThird Party Claim or ceasing to defend such Third Party Claim and (ii) the Indemnified Party shall be entitled to participate in the defense of any Third Party Claim and to employ separate counsel of its choice and at its own expense for such purpose. Upon delivery Whether or not the Xxxx Group assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without first consulting with the Xxxx Group and obtaining the Xxxx Group’s written consent (such consent not to be unreasonably withheld, conditioned or delayed). In the event that the Xxxx Group has consented to any such settlement, the Xxxx Group shall have no power or authority to object under any provision of this Article V to the amount of any Claim by Parent in respect of such notice Third Party Claim; provided, however, that such settlement and any resulting Losses shall be subject to all of intention the limitations contained in this Article V. In the event that the Xxxx Group does not consent to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such mattersettlement, and the Indemnified Parties wish to seek indemnification hereunder in respect of such Third Party Claim, then the Indemnified Parties shall make such indemnification claims pursuant to the procedures set forth in this Section 5.5.
Appears in 1 contract
Samples: Merger Agreement (Bioventus Inc.)
Indemnification Claims. (a) If either a Purchaser Indemnified Party, on the one hand, In order to seek indemnification under Section 9.2 or a Shareholder Indemnified Party, on the other hand, (the "Claimants") wishes to assert an indemnification claim hereunderSection 9.3, the Claimant Indemnified Person shall deliver to Shareholdersthe Escrow Agent, if applicable, and the Indemnifying Person, a Purchaser certificate signed by any officer of Indemnified Party, or to PurchaserPerson, if the Claimant is a Shareholder Indemnified Partyapplicable, a written notice (a "“Claim Notice"”) setting forth(if the Escrow Participants are the Indemnifying Person, such notice shall be provided to the Securityholders’ Representative) reasonably promptly after the Indemnified Person has knowledge of a bona fide claim for indemnification pursuant to this Article IX; provided, that, any failure or delay in providing such notice shall not relieve the Indemnifying Person of its obligations under this Section 9.5, except and the extent the Indemnifying Person and the defense of such claim is prejudiced as a result thereof:
(i) stating that the matter giving rise to the Claim Indemnified Person has a claim for indemnification,Damages;
(ii) a detailed description stating the amount of all of the facts and circumstances known to Claimant giving rise such Damages that have been incurred, paid, reserved or accrued to the Claim, extent that the nature and amount thereof are determinable at such time (the “Claimed Amount”); and
(iii) a detailed description of, specifying in reasonable detail (based upon the information then possessed by Indemnified Person) the individual items of such Damages included in the amount so stated and a reasonable estimate the nature of the total amount of, claim to which such Damages are related and the monetary amounts actually incurred or expected provision of the Agreement which give rise to be incurred for which indemnification is soughtthe claim.
(b) Purchaser The Indemnifying Person may (if the Escrow Participants are the Indemnifying Person, the Securityholders’ Representative may), at any time on or before the twentieth (20th) day following its and, if applicable, the Escrow Agent’s receipt of a Claim Notice (the “Objection Period”), object (a “Claim Objection”) to a claim made in such Claim Notice by delivering written notice to the Indemnified Parties and Shareholder Indemnified Parties are referred Person and, if applicable, the Escrow Agent. The Claim Objection shall set forth in reasonable detail the reasons for the objection to herein as "Indemnified Parties," such claim and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party")portion of the Claimed Amount which is disputed. Within If, within twenty (20) days after receipt of any a Claim NoticeNotice is received by the Indemnifying Person, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory Person does not deliver a Claim Objection to the Indemnified Party Person and, if applicable, the Escrow Agent, the Indemnifying Person shall be conclusively deemed to provide reasonable security or other assurances for the performance have consented on behalf of their obligations hereunderitself (and in case of Securityholders’ Representative, and/or (ii) give written notice on behalf of all Company Securityholders), to the recovery by the Indemnified Party Person of their intention to dispute or contest all or part the full amount of such responsibility. Upon Damages specified in the Claim Notice.
(c) During the twenty- (20-)day period following the delivery of such notice of intention to contesta Claim Objection in accordance with Section 9.5(b), the parties will negotiate Indemnifying Person and the Indemnified Person shall attempt in good faith to resolve as promptly as possible any such dispute. If the dispute as to responsibility foris not resolved within such twenty- (20-)day period, either the Indemnifying Person or the amount of, any such matterIndemnified Person may bring suit in the Delaware courts pursuant to Section 10.7(b).
Appears in 1 contract
Samples: Merger Agreement (Cure Pharmaceutical Holding Corp.)
Indemnification Claims. (a) If either a Purchaser Indemnified PartyThe Stockholders and IPL agree that in the event and to the extent that any Stockholder has any liability or obligation to provide indemnification or contribution (collectively, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "ClaimantsIndemnification") wishes to assert for any losses of IPL, its successors or assigns (each an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser "Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (a "Claim NoticePerson") setting forthpursuant to the terms of the Merger Agreement:
(i) the matter giving rise claims of an Indemnified Person in respect of such Stockholder shall be limited to the Claim for indemnification,Deposited Shares and the Escrow Account in respect of such Stockholder and no Indemnified Person shall have any other right, claim or recourse to such Stockholder or the assets of such Stockholder;
(ii) a detailed description to the extent that such losses arise from any obligation for which such Stockholders are jointly and severally liable under the Merger Agreement, and in respect of all which an Indemnified Person is entitled to Indemnification under the Merger Agreement, the right of the facts Indemnified Person to receive such Indemnification in respect of any particular Stockholder regarding any such loss and circumstances known to Claimant giving rise assert any claim against the Deposited Shares and the Escrow Account attributable to such Stockholder hereunder, shall be limited to an amount determined by multiplying: (A) the Claim, amount of such loss for which such Indemnification is required to be provided under the Merger Agreement; by (B) the Stockholder Percentage of such Stockholder; and
(iii) a detailed description ofto the extent that such losses arise from any obligation for which such Stockholders are not jointly or severally liable under the Merger Agreement, and a reasonable estimate in respect of which an Indemnified Person is entitled to Indemnification under the Merger Agreement, the right of an Indemnified Person to receive such Indemnification in respect of any particular Stockholder regarding any such loss and to assert any claim against the Deposited Shares and the Escrow Account attributable to such Stockholder hereunder, shall be limited solely to the Deposited Shares and the Escrow Account attributable to the particular Stockholder having an Indemnification obligation in respect of such loss and no Indemnified Person shall have recourse to, or have any right to make any claim against, receive any payment from, or receive all or any portion of the total amount ofDeposited Shares or the Escrow Account attributable to, the monetary amounts actually incurred any other Stockholder or expected to be incurred for which indemnification is soughtany other assets of any Stockholder.
(b) Purchaser In the event that an Indemnified Parties and Shareholder Indemnified Parties are referred Person believes that it is entitled to herein as "Indemnified Parties," and the persons payment of money for Indemnification from whom indemnification may be sought a Stockholder pursuant to this Section 11.6 are referred the provisions of Article X of the Merger Agreement, such Indemnified Person shall proceed to as assert any such claim (an "Indemnifying PartyIndemnification Claim"). Within twenty ) in the manner set forth in the Merger Agreement.
(20c) days after receipt of The Escrow Agent shall not disburse any Claim Notice, the Indemnifying Parties will amount with respect to any claim for Indemnification made by any Indemnified Person until directed to make a payment pursuant to either: (i) acknowledge a written instruction signed by the Stockholder against which such claim is asserted (the "Subject Stockholder") and the Indemnified Person (it being understood and agreed that, in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledgedevent that a Stockholder agrees in writing, or (y) take such other action it is determined by a final, binding non-appealable order or judgment of a court of competent jurisdiction, that he is obligated to provide a specified amount as is reasonably satisfactory Indemnification to an Indemnified Person pursuant to the Indemnified Party to terms of Article X of the Merger Agreement, then such Stockholder shall also provide reasonable security the notice contemplated herein); or other assurances for the performance of their obligations hereunder, and/or (ii) give a certificate signed by the Stockholders and IPL stating that the claim has been resolved pursuant to a final, binding non-appealable order or judgment of a court of competent jurisdiction.
(d) In the event that the Escrow Agent is required to make any payment in respect of a Subject Stockholder to any Indemnified Person pursuant to the terms of Section 5(c) above, then such payment shall be made by the Escrow Agent subject to and in accordance with the following procedure:
(i) the Escrow Agent shall make such payment on the fifth (5th) Business Day (provided that in the event of a Cash Substitution or Stock Substitution during such period with respect to which a Section 3 Objection or Section 4 Objection is given, then the date will be the fifth day following the date such objection is resolved or as soon as thereafter practicable pursuant to Section 11 hereof) following the occurrence of the first to occur of the events contemplated in Section 5(c)(i) or (ii), (the "Payment Date");
(ii) during the four (4) Business Days prior to the Payment Date the Subject Stockholder may, at its option, engage in a Cash Substitution or Stock Substitution by giving a Cash Substitution Notice or a Stock Substitution Notice pursuant to Section 3 or 4 hereof and the Payment Date will be appropriately extended to the minimum extent necessary to permit such Cash Substitution or Stock Substitution to occur;
(iii) the Subject Stockholder may, at its option by written notice to the Escrow Agent, who shall deliver a copy to the Indemnified Party Person no later than one Business Day after receipt thereof, given not less than four (4) Business Days prior to the Payment Date, elect to have any amount to be paid hereunder, paid in either cash from the Escrow Account, Deposited Shares, or a combination thereof (provided that in the event of their intention the failure of the Escrow Agent to dispute or contest all or part of such responsibility. Upon delivery of receive any such notice prior to the fifth day preceding the Payment Date, such payment will be made first in cash from the Escrow Account and then from the Deposited Shares);
(iv) for the purpose of intention to contestmaking any payment in Deposited Shares, the same shall be valued at Market Value determined as of the close of business on the fourth day preceding the Payment Date; and
(v) in executing funds transfers, the Escrow Agent will rely upon account numbers or other identifying numbers of a Stockholder or Indemnified Person or its bank, rather than names. The Escrow Agent shall not be liable for any loss, liability or expense resulting from any error made by a Stockholder or Indemnified Person with respect to an account number or other identifying number provided it has accurately followed written instructions from the Stockholder or Indemnified Person in accordance with the disbursement provisions set forth above. The Escrow Agent will confirm the instructions set forth in such written instructions with the authorized individuals making such request at the authorized telephone numbers appearing above each such individual's name. The Escrow Agent will verify by telephone all payment orders unless they call for a transfer to a pre-identified account.
(e) Notwithstanding anything to the contrary contained herein, the Stockholders and IPL will not take any action pursuant to this Agreement which would constitute or result in any assignment of a Federal Communications Commission ("FCC") license or any change of control of any FCC licensee, whether de facto or de jure, if such assignment of license or change of control would require under then existing law (including the written rules and regulations promulgated by the FCC), the prior approval of the FCC, without first obtaining such approval of the FCC. The parties hereto hereby agree that voting rights in the Deposited Shares transferred to IPL hereunder will negotiate remain in good faith each Stockholder unless any required approval of the FCC shall be obtained to resolve the transfer of voting rights. The Stockholders hereby agree to take such action as promptly as possible IPL may reasonably request in order to complete any dispute as transfer of Deposited Shares contemplated hereby, including specifically, at IPL's cost and expense, the use of each Stockholders reasonable efforts to responsibility forassist in obtaining the approval of the FCC for any action or transaction contemplated hereby which is then required by law, and specifically, without limitation, upon request, to prepare, sign and file with the FCC the assignor's or transferor's portion of any application or applications for consent to the assignment of license or transfer of control necessary or appropriate under the FCC's rules and regulations for approval of (a) any sale or sales of Deposited Shares by or on behalf of the Escrow Agent pursuant hereto, or (b) any assumption by IPL of voting rights or management rights in the amount of, any such matterDeposited Shares effected in accordance herewith.
Appears in 1 contract
Indemnification Claims. (a) If either a Purchaser An Indemnified Party, on the one handParty entitled, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") wishes seeking to assert an rights, to indemnification claim hereunder, the Claimant under this Article VI shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a give written notice (a "Claim Notice") setting forth:
(i) the matter giving rise notification to the Claim for indemnification,
(ii) a detailed description of all Shareholder Representative of the facts and circumstances known commencement of any suit or proceeding relating to Claimant giving rise to the Claim, and
(iii) a detailed description of, and a reasonable estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred third party claim for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party")Article VI may be sought. Within Such notification shall be given within twenty (20) business days after receipt by the Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the Indemnified Party in notifying the Shareholder Representative shall relieve the indemnifying party of any Claim Noticeliability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within twenty days after delivery of such notification, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part Shareholder Representative may, upon written notice thereof to the Indemnified Party, assume control of the defense of such matter for which indemnification is sought under this Article 11, and will either (x) pay suit or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is proceeding with counsel reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for Party; provided that (i) the performance Shareholder Representative may only assume control of their obligations hereunder, and/or such defense if (iiA) give written notice it acknowledges in writing to the Indemnified Party of their intention that any damages, fines, costs or other liabilities that may be assessed against the Indemnified Party in connection with such suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to dispute this Article VI and (B) the ad damnum is less than or contest all or part of such responsibility. Upon delivery of such notice of intention equal to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of Damages for which indemnification is available under this Article VI and (ii) the Shareholder Representative may not assume control of, any such matter.
Appears in 1 contract
Samples: Merger Agreement (Engage Inc)
Indemnification Claims. (a) If either a Purchaser Indemnified Party, on the one hand, In order to seek indemnification under Section 9.2 or a Shareholder Indemnified Party, on the other hand, (the "Claimants") wishes to assert an indemnification claim hereunderSection 9.3, the Claimant Indemnified Person shall deliver to Shareholdersthe Escrow Agent, if applicable, and the Indemnifying Person, a Purchaser certificate signed by any officer of Indemnified Party, or to PurchaserPerson, if the Claimant is a Shareholder Indemnified Partyapplicable, a written notice (a "“Claim Notice"”) setting forth(if the Escrow Participants are the Indemnifying Person, such notice shall be provided to the Securityholders’ Representative) reasonably promptly after the Indemnified Person has knowledge of a bona fide claim for indemnification pursuant to this Article 9; provided, that, any failure or delay in providing such notice shall not relieve the Indemnifying Person of its obligations under this Section 9.5, except and the extent the Indemnifying Person and the defense of such claim is prejudiced as a result thereof:
(i) stating that the matter giving rise to the Claim Indemnified Person has a claim for indemnification,Damages;
(ii) a detailed description stating the amount of all of the facts and circumstances known to Claimant giving rise such Damages that have been incurred, paid, reserved or accrued to the Claim, extent that the nature and amount thereof are determinable at such time (the “Claimed Amount”); and
(iii) a detailed description of, specifying in reasonable detail (based upon the information then possessed by Indemnified Person) the individual items of such Damages included in the amount so stated and a reasonable estimate the nature of the total amount of, claim to which such Damages are related and the monetary amounts actually incurred or expected provision of the Agreement which give rise to be incurred for which indemnification is soughtthe claim.
(b) Purchaser The Indemnifying Person may (if the Escrow Participants are the Indemnifying Person, the Securityholders’ Representative may), at any time on or before the twentieth (20th) day following its and, if applicable, the Escrow Agent’s receipt of a Claim Notice (the “Objection Period”), object (a “Claim Objection”) to a claim made in such Claim Notice by delivering written notice to the Indemnified Parties and Shareholder Indemnified Parties are referred Person and, if applicable, the Escrow Agent. The Claim Objection shall set forth in reasonable detail the reasons for the objection to herein as "Indemnified Parties," such claim and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party")portion of the Claimed Amount which is disputed. Within If, within twenty (20) days after receipt of any a Claim NoticeNotice is received by the Indemnifying Person, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory Person does not deliver a Claim Objection to the Indemnified Party Person and, if applicable, the Escrow Agent, the Indemnifying Person shall be conclusively deemed to provide reasonable security or other assurances for the performance have consented on behalf of their obligations hereunderitself (and in case of Securityholders’ Representative, and/or (ii) give written notice on behalf of all Company Securityholders), to the recovery by the Indemnified Party Person of their intention to dispute or contest all or part the full amount of such responsibility. Upon Damages specified in the Claim Notice.
(c) During the twenty (20) day period following the delivery of such notice of intention to contesta Claim Objection in accordance with Section 9.5(b), the parties will negotiate Indemnifying Person and the Indemnified Person shall attempt in good faith to resolve as promptly as possible any such dispute; if Acquiror is a party to the dispute, the President of Acquiror shall personally participate in the good faith attempt at resolution of such dispute. If the dispute as to responsibility foris not resolved within such twenty (20) day period, either the Indemnifying Person or the amount of, any such matterIndemnified Person may bring an arbitration proceeding pursuant to Section 10.7(d).
Appears in 1 contract
Samples: Merger Agreement (Cure Pharmaceutical Holding Corp.)
Indemnification Claims. (ai) If either a Purchaser Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") wishes to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Parent on behalf of an Indemnified Party, reasonably believes that he, she or it has or may have a right to indemnification under this Article 8 (each, an “Indemnification Claim”), such Indemnified Party or Parent shall so notify the Securityholder Representative and, in the event such claim is to be made against the Escrow Fund, the Escrow Agent in a written notice notice, signed by such Indemnified Party or Parent, or any officer of either such Person where applicable (each, an “Indemnification Claim Certificate”) (i) stating that such Indemnified Party has paid, sustained or incurred any Losses, or reasonably anticipates that he, she or it will pay, sustain or incur any Losses, (ii) specifying in reasonable detail the individual items of Losses included in the amount so stated (and the method of computation of each such item of Losses, if applicable), the date each such item of Losses was paid, sustained or incurred, or the basis for such reasonably anticipated Losses, (iii) a "brief description in reasonable detail (to the extent available to such Indemnified Party) of the facts, circumstances or events giving rise to each item of Losses based on such Indemnified Party’s good faith belief thereof, including the identity and address of any third‑party claimant and copies of any formal demand or complaint relating thereto, and (iv) the basis for indemnification under Section 8.2 to which such item of Losses is related (including, if applicable, the specific nature of the misrepresentation, or the breach of warranty or covenant).
(ii) During the thirty (30) calendar day period following the delivery of an Indemnification Claim Notice"Certificate, the Securityholder Representative and its representatives and agents shall be given reasonable access to the books and records of the Surviving Corporation to the extent they form the factual basis for the underlying Indemnification Claim solely for the purposes of investigating or resolving any disputes or responding to any matters or inquiries raised in the Indemnification Claim Certificate; provided that the Securityholder Representative and its representatives and agents shall not have access to materials subject to the attorney client privilege or that constitute attorney work product. The Securityholder Representative hereby agrees that it shall, and shall cause its representatives and agents to, maintain the confidentiality of all information provided to them pursuant to the immediately preceding sentence. Notwithstanding the foregoing confidentiality obligations, following Closing, the Securityholder Representative shall be permitted to disclose such information as required by law or to its employees, advisors or consultants and to the Company Securityholders in each case who have a need to know such information in connection with the performance of the Securityholder Representative of its obligations under this Agreement, provided that such persons either (A) setting forth:
agree to observe the terms of this Section 8.2(c)(ii) or (B) are bound by obligations of confidentiality to the Securityholder Representative of at least as high a standard as those imposed on the Securityholder Representative under this Section 8.2(c)(ii). If the Securityholder Representative shall not object (other than with respect to any Agreed Upon Losses) in writing to Parent, with a copy to the Escrow Agent, pursuant to Section 8.2(c)(iv) to any individual items of Losses set forth in an Indemnification Claim Certificate delivered by Parent or any other Indemnified Party or Parties pursuant to Section 8.2(c)(i) within thirty (30) calendar days after the Escrow Agent’s receipt of such Indemnification Claim Certificate, the Securityholder Representative shall be conclusively deemed to have acknowledged and irrevocably consented, for and on behalf of the Indemnifying Parties, (i) to the Indemnified Party’s recovery of the full amount of all such items of Losses set forth in such Indemnification Claim Certificate solely to the extent that such Losses do not exceed the amount of the Escrow Fund at such time, and (ii) if and to the extent necessary, and without further notice, to have stipulated to the entry of a final judgment for damages against the Indemnifying Parties for such items of Losses in any court having competent jurisdiction over the matter. Upon receipt of any Indemnification Claim Certificate, the Escrow Agent shall not release any portion of the Escrow Fund to Parent or any other Indemnified Party or Parties pursuant to this Agreement unless and until (i) the matter giving rise Escrow Agent shall have received written authorization from the Securityholder Representative to release any portion of the Claim for indemnification,
Escrow Fund, or (ii) a detailed description the Securityholder Representative shall have failed to object in writing pursuant to Section 8.2(c)(iv) to any individual items of all Losses set forth in such Indemnification Claim Certificate within thirty (30) calendar days after the Escrow Agent’s receipt of the facts and circumstances known to Claimant giving rise to the Claim, andsuch Indemnification Claim Certificate.
(iii) a detailed description of, and a reasonable estimate In the event that the Escrow Agent shall receive written authorization from the Securityholder Representative to release to Parent or any other Indemnified Party or Parties any portion of the total amount ofEscrow Fund pursuant to Section 8.2(c)(i), the monetary amounts actually incurred Escrow Agent shall release such portion of the Escrow Fund in accordance with such written instructions. In the event that the Securityholder Representative shall have failed to object in writing pursuant to Section 8.2(c)(iv) to any individual items of Losses set forth in an Indemnification Claim Certificate relating to a claim for indemnification pursuant to Section 8.2 within thirty (30) calendar days after the Escrow Agent’s receipt of such Indemnification Claim Certificate, the Escrow Agent shall promptly release to Parent or expected any other Indemnified Party or Parties (as instructed by Parent in writing) from the Escrow Fund an amount of cash equal to be incurred for the amount of all such items of Losses specified in such Indemnification Claim Certificate with respect to which indemnification is soughtthe Securityholder Representative - 84 - has not objected in writing pursuant to Section 8.2(c)(iv). Any cash released to Parent or any other Indemnified Party or Indemnified Parties pursuant to the preceding sentence shall have the effect of reducing each Company Indemnifying Party’s interest in the Escrow Fund in accordance with his, her or its Pro Rata Percentage of the Escrow Fund.
(biv) Purchaser In the event that the Securityholder Representative shall seek to contest any individual items of Losses (other than any Agreed Upon Losses) set forth in an Indemnification Claim Certificate received from Parent or any other Indemnified Parties and Shareholder Indemnified Parties are referred Party pursuant to herein as "Indemnified Parties," Section 8.2(c)(i), the Securityholder Representative shall notify Parent and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty Escrow Agent in writing, within thirty (2030) calendar days after receipt of any such Indemnification Claim NoticeCertificate, of the Indemnifying Parties will (i) acknowledge Securityholder Representative’s objection, which notice shall set forth a brief description in writing their responsibility reasonable detail of the Securityholder Representative’s basis for all or part objecting to each item of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy Losses based on the portion Securityholder Representative’s good faith belief thereof. Upon Parent’s receipt of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory a written notice of objection from the Securityholder Representative pursuant to the Indemnified Party to provide reasonable security or other assurances for preceding sentence, Parent and the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate Securityholder Representative shall attempt in good faith to resolve as promptly as possible agree upon the rights of the respective parties with respect to the disputed items of Losses. If the Securityholder Representative and Parent should so agree, a memorandum setting forth the agreement reached by the parties with respect to such disputed items of Losses shall be prepared and signed by both 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 dispute as such memorandum and make distributions from the Escrow Fund in accordance with the instructions set forth in any such memorandum. Notwithstanding the foregoing, the Securityholder Representative and the Indemnifying Parties hereby waive the right to responsibility forobject to or contest any Agreed Upon Losses set forth in an Indemnification Claim Certificate received from Parent or any other Indemnified Party, except to the extent that the Securityholder Representative disagrees with the mathematical calculation of the amount of such Agreed Upon Losses. For purposes of this Agreement, “Agreed Upon Losses” means Losses paid, sustained or incurred by any Indemnified Parties (or any of them) resulting from, arising out of or in connection with, or the amount ofin any way related to, any of the following: (A) any amount paid by Parent, the Company or the Surviving Corporation to any Company Stockholder with respect to Dissenting Shares in excess of the value such matterPerson would have received in the Merger for such Dissenting Shares had such shares been converted pursuant to Section 2.7(b), and all interest, costs, expenses and fees incurred by Parent, the Company or the Surviving Corporation in connection with the exercise or attempted exercise of any appraisal rights, (B) any inaccuracy in the Payment Spreadsheet, and any amounts paid by reason thereof to any Company Securityholder in excess of the consideration to which such Company Securityholder is entitled in respect of Company Securities pursuant to this Agreement, (C) any Transaction Expenses in excess of the Transaction Expenses Amount, (C) any amounts payable in the event of a Negative Adjustment Amount in accordance with Section 2.8(e), (D) any Pre-Closing Taxes and (E) any Agent Indemnification Expenses or Agent Interpleader Expenses.
Appears in 1 contract
Samples: Merger Agreement (Tivo Inc)
Indemnification Claims. (a) If either a Purchaser an Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, Party (the "Claimants"“Claimant”) wishes to assert an indemnification claim hereunderhereunder (a “Claim”), the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, responsible Indemnifying Party a written notice (a "“Claim Notice"”) setting forth:
(i) a description of the matter giving rise to the Claim for indemnification,
(ii) Claim, including a reasonably detailed description of all of the facts and circumstances known to Claimant giving rise to the Claim, and
(iiiii) a detailed description ofto the extent determinable based on facts known to the Claimant at such date, and a reasonable an estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty thirty (2030) days after receipt of any Claim Notice, the Indemnifying Parties will Party shall (i) acknowledge in writing their its responsibility for all or part of such matter for which indemnification is sought under this Article 11ARTICLE VII, and will either (xA) pay or otherwise satisfy (subject to the terms and conditions of Section 7.05) the portion of such matter as to which responsibility is acknowledged, or (yB) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their its obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their its intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties Parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. If the Parties fail to resolve such dispute within ninety (90) days of delivery of the notice of intention to contest, either Party may submit such dispute for resolution pursuant to Section 9.14.
Appears in 1 contract
Indemnification Claims. (a) Subject to the limitations and other provisions set forth herein, the Indemnification Amount or the Tax Amount, as the case may be, shall provide the sole and exclusive source of payment to any Acquiror Indemnified Persons for Damages with respect to which they may be entitled to indemnification pursuant to Section 8.2.
(b) If either a Purchaser any Acquiror Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, Person (the "ClaimantsClaimant") wishes has or claims to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Partyhave incurred or suffered, or to Purchaserreasonably anticipates incurring or suffering, if Damages for which the Claimant is or may be entitled to indemnification under Section 8.2 (subject to the limitations set forth in Section 8.3), Acquiror will, on behalf of the Claimant and on or prior to the Indemnification Termination Date, deliver a Shareholder Indemnified Party, a written claim notice (a "Claim Notice") setting forthto Platinum in the manner provided below. Each Claim Notice shall include (i) a statement of the facts indicating that the Claimant giving such notice is an Acquiror Indemnified Person, (ii) a certification that such Claim Notice has been sent to Platinum, (iii) a statement, in reasonable detail, of the basis for and the facts and circumstances supporting the belief that the Clamant is or may be entitled to indemnification under Section 8.2, and (iv) to the extent possible, a non-binding, preliminary estimate of the amount of Damages for which the Claimant may be seeking indemnification (the "Claimed Amount").
(c) Within twenty (20) business days after receipt by Platinum of a Claim Notice (unless a longer period is consented to in writing by Acquiror, which consent shall not be unreasonably withheld, provided in no event shall Acquiror be required to consent to a period longer than forty (40) days) (the "Response Notice Period"), Platinum may deliver to Acquiror a written response (the "Response Notice") in which Platinum either:
(i) agrees to satisfy the matter giving rise Claimed Amount in full (up to the Claim for indemnification,Indemnification Amount or the Tax Amount, as the case may be);
(ii) agrees to satisfy a detailed description of all portion of the facts and circumstances known to Claimant giving rise to the Claim, andClaimed Amount; or
(iii) a detailed description of, and a reasonable estimate contends that no portion of the total amount of, the monetary amounts actually incurred or expected Claimed Amount is required to be incurred for which indemnification satisfied. If a Response Notice is soughtnot received by the Acquiror prior to the expiration of the Response Notice Period, then Platinum shall be deemed to have agreed to satisfy the previously unpaid portion of the Claimed Amount in full, up to Indemnification Amount or the Tax Amount, as the case may be.
(bd) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty (20) days after receipt of any Claim Notice, the Indemnifying Parties will If Platinum (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise delivers a Response Notice agreeing to satisfy the portion Claimed Amount in full (up the Indemnification Amount or the Tax Amount, as the case may be), (ii) does not deliver a Response Notice prior to the expiration of such matter as to which responsibility is acknowledgedthe Response Notice Period, or (yiii) take delivers a Response Notice agreeing to satisfy a portion, but not all, of the Claimed Amount , then, in any such other action as is reasonably satisfactory case, Platinum shall, promptly following the delivery of the Response Notice (or promptly following the expiration of the Response Notice Period if no Response Notice has been delivered), deliver to Acquiror for the account of the Claimant payment equal to the Indemnified Party Claimed Amount or such portion thereof (provided that payments by Platinum in the aggregate shall not exceed the Indemnification Amount or the Tax Amount, as the case may be). Acquiror shall be responsible for distributing such amounts received from Platinum to provide reasonable security or other assurances for among Claimants.
(e) If Platinum delivers a Response Notice agreeing to satisfy part, but not all, of the performance Claimed Amount or contends that no portion of their obligations hereunderthe Claimed Amount is required to be satisfied, and/or (ii) give written notice to Platinum and the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate Claimant shall attempt in good faith to resolve such dispute. If the Claimant and Platinum are able to resolve such dispute, such resolution shall be binding on the Claimant and Platinum.
(f) If Platinum and the Claimant are unable to resolve such dispute within ten (10) business days after the expiration of the Response Notice Period (or such longer period as promptly as possible Platinum and the Claimant may agree upon), then the claim described in the Claim Notice shall be settled by binding arbitration before a single arbitrator to be held in San Jose, California under the auspices and rules of JAMS/Endispute, Inc. The arbitrator in such proceeding shall be required to sign and to deliver to both parties a written arbitration award. Such written award need not set forth the legal or factual determinations reached in making such award. The non-prevailing party in any dispute as such proceeding shall pay the reasonable expenses (including attorneys' fees) of the prevailing party and the fees and expenses associated with the proceeding. For purposes of this Section 8.4(f), the non-prevailing party shall be deemed to responsibility for, or be the Claimant if the Claimant is held to be entitled to recover less than 50% of the amount ofin dispute (i.e., any such matterthe amount of the Claimed Amount that Platinum had declined to satisfy); otherwise it shall be Platinum.
Appears in 1 contract
Indemnification Claims. (ai) If either At any time prior to the Final Scheduled Release Date, Buyer shall notify (which notice shall set forth the amount of estimated Losses) the Escrow Agent and the Company in writing of any Indemnification Claim for which Buyer or any of Buyer’s Other Indemnified Persons seeks indemnification out of the Escrowed Funds under the Purchase Agreement, including a Purchaser Indemnified Party, on copy of any claim notice made under the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") wishes to assert an indemnification claim hereunder, the Claimant Purchase Agreement. The Company shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if Buyer and the Claimant is a Shareholder Indemnified Party, Escrow Agent a written response to any Indemnification Claim asserted by Buyer (or any of Buyer’s Other Indemnified Persons) within 30 days after receipt by the Company of such notice of Indemnification Claim (a "Claim Notice"such date of receipt, the “Notification Date”). Such written response shall specify either (x) setting forth:
that (iand the extent to which) the matter giving rise Company consents to the payment of such Indemnification Claim asserted by Buyer (or any of Buyer’s Other Indemnified Persons) or (y) that the Company objects to the payment of such Indemnification Claim and stating its reasons for indemnification,objecting.
(ii) If (and to the extent that) the Company consents to the payment of any portion of an Indemnification Claim, Buyer and the Company shall deliver to the Escrow Agent, as promptly as is reasonably practicable under the circumstances, but in all events within five Business Days after the Company consents to such Indemnification Claim, a detailed description Direction Letter specifying the amount that the Company has consented to be paid to Buyer (or any of all Buyer’s Other Indemnified Persons) with respect to such Indemnification Claim (to the extent of such consent, an “Allowed Indemnification Claim”). Subject to the limitations herein, the Escrow Agent shall promptly pay the Allowed Indemnification Claim to Buyer (or, if directed in writing by Buyer, to any of Buyer’s Other Indemnified Persons) out of the facts and circumstances known to Claimant giving rise to the Claim, andEscrowed Funds in accordance with that Direction Letter.
(iii) If the Company objects to the payment of an Indemnification Claim (or any portion thereof) (each such Indemnification Claim or portion thereof being a detailed description of“Disputed Indemnification Claim”), then Buyer and the Company shall deliver a reasonable estimate Direction Letter pursuant to Section 3(a)(ii) with respect to the payment of the total amount ofundisputed portion (if any) of such Indemnification Claim. After the date the Company objects to the payment of the Disputed Indemnification Claim, then Buyer (or any of Buyer’s Other Indemnified Persons) may commence an action to obtain payment out of the monetary amounts actually incurred Escrowed Funds with respect to such Disputed Indemnification Claim. No later than five Business Days following the final resolution of the Disputed Indemnification Claim (whether by order, judgment, decree, settlement, arbitration award or expected otherwise from which no appeal may be taken, whether because of lapsed time or otherwise), Buyer and the Company shall deliver a Direction Letter to be incurred for which indemnification is soughtthe Escrow Agent directing payment of such Disputed Indemnification Claim and the Escrow Agent shall promptly pay such Disputed Indemnification Claim to Buyer (or, if directed in writing by Buyer, to any of Buyer’s Other Indemnified Persons) out of the Escrowed Funds in accordance with that Direction Letter.
(biv) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred If the Company fails to herein as "Indemnified Parties," and the persons from whom indemnification may be sought respond in writing in accordance with Section 3(a)(i) to a notice of an Indemnification Claim pursuant to Section 3(a)(i) within 30 days of the applicable Notification Date, then the Company shall be deemed to have agreed to the validity of the Indemnification Claim for the amount thereof, and to have consented to the payment thereof. The Escrow Agent shall make payment of such amount from the Escrowed Funds to Buyer (or, if directed in writing by Buyer, to any of Buyer’s Other Indemnified Persons) in accordance with Buyer’s written instructions, which instructions shall be consistent with the Indemnification Claim.
(v) The procedures in this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty (203(a) days after receipt of any Claim Notice, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory relate solely to the process for Buyer or any of Buyer’s Other Indemnified Party Persons to provide reasonable security receive indemnification of Indemnification Claims out of the Escrowed Funds. Nothing in this Agreement shall limit Buyer or any other assurances for of Buyer’s Other Indemnified Persons from making any other claims directly against the performance Company or Seller that are permitted by the terms and conditions of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matterPurchase Agreement.
Appears in 1 contract
Indemnification Claims. (a) If either a Purchaser Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") wishes to assert an indemnification claim hereunder, the Claimant shall deliver to the Primary Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (a "Claim Notice") setting forth:
(i) the matter giving rise to the Claim claim for indemnification,
(ii) a detailed description of all of the facts and circumstances known to Claimant giving rise to the Claimclaim, and
(iii) a detailed description of, and a reasonable estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.;
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an the "Indemnifying Party"). Parties." Within twenty (20) days after receipt of any Claim Notice, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter.
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Indemnification Claims. Any claim for indemnification, compensation or reimbursement pursuant to Section 9 shall be brought and resolved exclusively in accordance with this Section 10.6(c) (ait being understood that, for the avoidance of doubt and without limiting any portion of Section 10.6(c): (i) at the option of any party, any claim based upon intentional misrepresentation, willful misconduct or fraud may be brought and resolved in accordance with Section 10.6(c) rather than in accordance with this Section 10.6(c); and (ii) nothing in this Section 10.6(c) shall prevent any Purchaser Indemnitee or Seller Member Indemnitee from seeking preliminary injunctive relief or any other equitable remedy from a court of competent jurisdiction).
(i) If either any Purchaser Indemnitee or Seller Member Indemnitee has or claims in good faith to have incurred or suffered, or believes in good faith that it may incur or suffer, Damages for which it is or may be entitled to indemnification, compensation or reimbursement under Section 9 of this Agreement, such Purchaser Indemnitee may deliver, or such Seller Member Indemnitee may deliver, a Purchaser claim notice (a “Claim Notice”) to the Seller Member or Purchaser, as applicable. Each Claim Notice shall: (i) state that the Indemnified Party believes in good faith that it is entitled to indemnification, compensation or reimbursement under Section 9 of this Agreement; (ii) contain a brief description of the facts and circumstances supporting the Indemnified Party’s claim; and (iii) if practicable, contain a non-binding, preliminary, good faith estimate of the amount to which the Indemnified Party might be entitled (the aggregate amount of such estimate, as it may be modified by the Indemnified Party in good faith from time to time, being referred to as the “Claimed Amount”).
(ii) During the forty-five (45) day period commencing upon receipt by the Seller Member or Purchaser, as applicable, of a Claim Notice from or on behalf of an Indemnified Party (the “Dispute Period”), the Seller Member or Purchaser, as applicable, may deliver to the Purchaser or Seller Member, as applicable, a written response (the “Response Notice”) in which it: (i) agrees that the full Claimed Amount is owed to the Indemnified Party; (ii) agrees that part, but not all, of the Claimed Amount is owed to the Indemnified Party; or (iii) indicates that no part of the Claimed Amount is owed to the Indemnified Party. If the Response Notice is delivered in accordance with clause “(ii)” or “(iii)” of the preceding sentence, the Response Notice shall also contain a brief description of the facts and circumstances supporting the Seller Member’s agent’s or Purchaser’s position, as applicable, that only a portion or no part of the Claimed Amount is owed to the Indemnified Party, as the case may be. Any part of the Claimed Amount that is not agreed to be owed to the Indemnified Party pursuant to the Response Notice (or the entire Claimed Amount, if Purchaser or the Seller Member, as applicable, asserts in the Response Notice that no part of the Claimed Amount is owed to the Indemnified Party) being referred to as the “Contested Amount” (it being understood that the Contested Amount shall be modified from time to time to reflect any good faith modifications by or on behalf of the Indemnified Party to the Claimed Amount). If a Response Notice is not received by or on behalf of the Indemnified Party from the Seller Member or Purchaser, as applicable, prior to the expiration of the Dispute Period, then the Seller Member or Purchaser, as applicable, shall be conclusively deemed to have agreed that an amount equal to the full Claimed Amount is owed to the Indemnified Party.
(iii) If Purchaser or the Seller Member, as applicable, in its Response Notice agrees that the full Claimed Amount is owed to the Indemnified Party, or if no Response Notice is received by or on behalf of the Indemnified Party from Purchaser or the Seller Member, as applicable, prior to the expiration of the Dispute Period, then, subject to the limitations in Section 9.3, the Indemnifying Party shall take such necessary action to cause the Indemnified Party to be paid the Claimed Amount within ten (10) Business Days.
(iv) If Purchaser or the Seller Member, as applicable, delivers a Response Notice to the Seller Member or Purchaser, as applicable, during the Dispute Period agreeing that part, but not all, of the Claimed Amount is owed to the Indemnified Party (the “Agreed Amount”), then, subject to the limitations in Section 9.3, the Indemnifying Party shall take such necessary action to cause the Indemnified Party to be paid the Agreed Amount within 10 Business Days.
(v) If Purchaser or the Seller Member, as applicable, delivers a Response Notice to the Seller Member or the Purchaser, as applicable, during the Dispute Period indicating that there is a Contested Amount, the Seller Member and the Purchaser Indemnitee shall use commercially reasonable efforts in good faith to resolve the dispute related to the Contested Amount within the forty five (45) day period (the “Initial Resolution Period”) commencing upon receipt by Seller Member or the Purchaser Indemnitee, as applicable, of such Response Notice. If the Seller Member and the Purchaser Indemnitee resolve such dispute, such resolution shall be binding on the Seller Member and such Purchaser Indemnitee and a settlement agreement stipulating the amount owed to such Purchaser Indemnitee or Seller Indemnitee (the “Stipulated Amount”) shall be signed by Purchaser and the Seller Member. Thereafter, subject to the limitations in Section 9.3, the Indemnifying Party shall take such necessary action to cause the Indemnified Party to be paid the Stipulated Amount.
(vi) In the event that there is a dispute relating to any Claim Notice or Contested Amount (whether it is a matter between the Purchaser Indemnitee, on the one hand, or a Shareholder Indemnified Partyand the Seller Member, on the other hand, (the "Claimants") wishes to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant it is a Shareholder matter that is subject to a claim or Legal Proceeding asserted or commenced by a third party brought against the Purchaser Indemnitee) and such dispute is not resolved within the Initial Resolution Period, such dispute (an “Arbitrable Dispute”) shall be settled by binding arbitration in accordance with the procedures set forth under the commercial rules then in effect of the American Arbitration Association. Notwithstanding the preceding sentence, nothing in this Agreement shall prevent the Indemnified PartyParty from seeking preliminary injunctive relief from a court of competent jurisdiction pending resolution of any Arbitrable Dispute. Upon resolution of any arbitration described in this clause “(vi),” Purchaser and Seller Member, a written notice (a "Claim Notice") setting forth:
(i) the matter giving rise as applicable, subject to the Claim for indemnification,
(ii) a detailed description of all of the facts and circumstances known to Claimant giving rise to the Claimlimitations in Section 9.3, and
(iii) a detailed description of, and a reasonable estimate of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification may be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty (20) days after receipt of any Claim Notice, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) shall thereafter take such other necessary action as is reasonably satisfactory to cause the Indemnified Party to provide reasonable security or other assurances for the performance of their obligations hereunder, and/or (ii) give written notice to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or be paid the amount of, any set forth in such matterresolution within 10 Business Days (or such shorter time set forth in the resolution). .
Appears in 1 contract
Indemnification Claims. (a) If either a Purchaser To the extent applicable, subject to the limitations set forth in Section 10.3 or Section 10.4, if any Indemnified Party, on the one hand, or a Shareholder Indemnified Party, on the other hand, (the "Claimants") Party wishes to assert a claim under Section 10.2(a) or Section 10.2(b), as applicable (each, an indemnification claim hereunder“Indemnification Claim”), it shall notify in writing the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, Seller (if the Claimant Seller is a Shareholder Indemnified Party, a written notice the party from which indemnification is sought pursuant to Section 10.2(a)) or Acquiror (a "Claim Notice"if Acquiror is the party from which indemnification is sought pursuant to Section 10.2(b)) setting forth:
(i) the matter giving rise to the Claim for indemnification,
(ii) a detailed description of all of the facts and circumstances that give rise to such Indemnification Claim. As soon as reasonably practicable after such notice, the Indemnified Party shall deliver to the other Party a written claim notice (a “Claim Notice”) stating (i) that an Indemnified Party has paid, incurred, suffered or sustained, or anticipates that it may pay, incur, suffer or sustain Losses, and (ii) to the extent reasonably available, specifying such Losses or anticipated Losses in reasonable detail, the facts and circumstances (to the extent known by or available to Claimant the corresponding Representative) giving rise to such Losses and, if applicable, the Claim, and
(iii) a detailed description of, and a reasonable estimate nature of the total amount ofmisrepresentation, breach of warranty or covenant or other indemnifiable matter. Without extending the monetary amounts actually incurred or expected to be incurred for which indemnification is sought.
(b) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," and the persons from whom indemnification time limitations set forth in Section 10.1, a Claim Notice may be sought pursuant updated from time to this Section 11.6 are referred to as an "Indemnifying Party"). Within twenty (20) days after receipt of any Claim Notice, the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory to time by the Indemnified Party delivering such Claim Notice to provide reasonable security reflect any change in circumstances following the date thereof, and with respect to Leakage, Acquiror may deliver more than one (1) claim for Leakage, if there are separate events constituting Leakage. A failure to give complete, accurate or, without extending the time limitations set forth in Section 10.1, timely notice of a Claim Notice will not affect the rights or other assurances for obligations of any Indemnified Party hereunder. If an Indemnification Claim may be brought under different or multiple sections, clauses or subclauses of Section 10.2 (or with respect to different or multiple representations, warrants or covenants), then the performance of their obligations hereunderapplicable Indemnified Parties shall have the right to bring such Indemnification Claim under any or each such section, and/or clause, subclauses, representation, warranty or covenant (iieach a “Subject Provision”) give written notice to that it chooses and the Indemnified Party Parties will not be precluded from seeking indemnification under any Subject Provision by virtue of their intention the Indemnified Parties not being entitled to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible seek indemnification under any dispute as to responsibility for, or the amount of, any such matterother Subject Provision.
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Indemnification Claims. (a) If either any Indemnitee has incurred or suffered or claims to have incurred or suffered, or believes that it may incur or suffer, Damages for which it is or may be entitled to be held harmless, indemnified, compensated or reimbursed under this Section 7, such Indemnitee may deliver a Purchaser Indemnified notice to the Indemnifying Party (any such notice being referred to as a “Notice of Indemnification Claim,” and the claim for indemnification, compensation and reimbursement described in such Notice of Indemnification Claim being referred to as an “indemnification claim”), which shall (i) state that such Indemnitee believes that that there is or has been an inaccuracy in or breach of a representation, warranty, covenant or obligation contained in this Agreement or that such Indemnitee is otherwise entitled to be held harmless, indemnified, compensated or reimbursed under this Section 7, (ii) contain a description of the circumstances supporting such Indemnitee’s belief that there is or has been such an inaccuracy or breach or that such Indemnitee may otherwise be entitled to be held harmless, indemnified, compensated or reimbursed and (iii) contain a good faith, non-binding, preliminary estimate of the aggregate dollar amount of actual and potential Damages that have arisen and may arise as a result of the inaccuracy, breach or other matter referred to in such notice (the aggregate amount of such estimate, as it may be modified by such Indemnitee in good faith from time to time, being referred to as the “Claimed Amount”).
(b) During the 20-day period commencing upon the delivery by an Indemnitee to the Representative of a Notice of Indemnification Claim (the “Dispute Period”), the Indemnifying Party shall deliver to the Indemnitee a written response (the “Response Notice”) in which the Indemnifying Party: (i) agrees that the full Claimed Amount is owed to the Indemnitee; (ii) agrees that part (but not all) of the Claimed Amount is owed to the Indemnitee; or (iii) asserts that no part of the Claimed Amount is owed to the Indemnitee. Any part of the Claimed Amount that is not agreed by the Indemnifying Party to be owed to the Indemnitee pursuant to the Response Notice (or the entire Claimed Amount, if the Indemnifying Party asserts in the Response Notice that no part of the Claimed Amount is owed to the Indemnitee) shall be referred to as the “Contested Amount” (it being understood that the Contested Amount shall be modified from time to time to reflect any good faith and reasonable modifications by the Indemnitee to the Claimed Amount). If a Response Notice is not sent to the Indemnitee prior to the expiration of the Dispute Period, then, absent any material prejudice to the Indemnitee, the Indemnifying Party shall be conclusively and irrevocably deemed to have asserted that no part of the Claimed Amount is owed to the Indemnitee. If there is a Contested Amount, the Indemnifying Party (on behalf of the Stockholders) and the Indemnitee shall attempt in good faith to resolve the dispute related to the Contested Amount. If the Indemnitee and the Indemnifying Party resolve such dispute in writing, then their resolution of such dispute shall be binding on the Indemnifying Party, Seller, Purchaser, the Stockholders and the other Indemnitees and a settlement agreement stipulating the amount owed to the Indemnitee (the “Stipulated Amount”) shall be signed by the Indemnitee and the Indemnifying Party. Purchaser, on the one hand, or a Shareholder Indemnified PartySeller and the Stockholders, on the other hand, (in each case as applicable, shall, within 10 days following execution of such settlement agreement, pay the "Claimants") wishes to assert an indemnification claim hereunder, the Claimant shall deliver to Shareholders, if a Purchaser Indemnified Party, or to Purchaser, if the Claimant is a Shareholder Indemnified Party, a written notice (a "Claim Notice") setting forth:
(i) the matter giving rise Stipulated Amount to the Claim for indemnification,
Indemnitee (ii) which, in the case of Seller or a detailed description of all Stockholder, may be through reduction of the facts and circumstances known to Claimant giving rise Holdback Shares and/or setoff pursuant to the Claim, and
(iii) a detailed description of, and a reasonable estimate provisions of the total amount of, the monetary amounts actually incurred or expected to be incurred for which indemnification is soughtSection 7.9).
(bc) Purchaser Indemnified Parties and Shareholder Indemnified Parties are referred to herein as "Indemnified Parties," If the Indemnifying Party and the persons from whom Indemnitee are unable to resolve the dispute relating to any Contested Amount during the 30-day period commencing upon the delivery of the Response Notice, then either the Indemnitee or the Indemnifying Party may submit the contested portion of the indemnification may claim to the court in accordance with Section 7. The final award setting forth the aggregate amount owed to the Indemnitee shall be sought pursuant to this Section 11.6 are referred to as an "Indemnifying Party")the “Award Amount”. Within twenty Purchaser, on the one hand, or Seller and the Stockholders, on the other hand, in each case as applicable, shall, within 10 days following the entry by the court of the Award Amount, pay the Award Amount to the Indemnitee; provided, that any payments required to be made by the Seller or the Stockholders in satisfaction of claims for indemnification pursuant to Section 7.2(a) (20) days after receipt other than any inaccuracy in or breach of any Claim Notice, Specified Representation) shall first be satisfied by the Indemnifying Parties will (i) acknowledge in writing their responsibility for all or part Purchaser’s cancellation of such matter for which indemnification is sought under this Article 11, and will either (x) pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged, or (y) take such other action as is reasonably satisfactory Holdback Shares with an aggregate Deemed Value equal to the Indemnified Party Award Amount; provided further, that any payments required to provide reasonable security be made by the Seller or other assurances the Stockholders in satisfaction of claims for indemnification pursuant to Section 7 may, upon Purchaser’s election, be satisfied by the performance Purchaser’s cancellation of their obligations hereunder, and/or (ii) give written notice Holdback Shares with an aggregate Deemed Value equal to the Indemnified Party of their intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matterAward Amount.
Appears in 1 contract
