Manner of Indemnification. Upon the occurrence of an Event of Indemnity, the Buyer may, at or at any time after such occurrence, notify the Seller(s) from whom indemnification is sought (the "Indemnifying Sellers") and Escrow Agent thereof, stating specifically the obligation(s) with respect to which the claim is made, the facts giving rise to and alleged basis for such claim, and the amount of the Loss incurred or that may be incurred by reason thereof (a "Notice of Claim"). If the Buyer makes a demand for indemnification with respect to an Event of Indemnity for which more than one Indemnifying Seller would be liable under this Agreement, it shall make such demand against the Indemnifying Sellers that would be liable for said Event of Indemnity. Within 30 days after the mailing of such notice, the Indemnifying Sellers shall, subject to Section 7.4, either (a) notify the Buyer and Escrow Agent that they accept the amount of such indemnification claim as set forth in the Notice of Claim, in whole or in part, and instruct the Escrow Agent to charge such accepted amount against the Sellers pro rata under the Escrow Agreement, or (b) deny or dispute the alleged occurrence of such Event of Indemnity as asserted in the Notice of Claim by the Buyer. If such Event of Indemnity relates to a claim by a person or persons other than the Buyer, and the amount of such claim is fully covered by the foregoing indemnity, as limited by Section 7.4 hereof, the Indemnifying Sellers or any of them may elect, within said 30-day period, to defend against such claim at their expense, in lieu of the Buyer assuming such defense. If the Indemnifying Sellers or any of them elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer. If the Loss incurred relates to the failure of a Seller to collect any note or account receivable and if any Indemnifying Sellers pay in full the unpaid balance thereof to the Buyer, the Buyer will cause the Company to assign said note or account without recourse to the Sellers paying same. If within said 30-day period, none of the Indemnifying Sellers has, with respect to an Event of Indemnity, taken the action required to be taken within said period, the amount set forth in Buyer's Notice of Claim with respect to such Event of Indemnity shall be deemed to be charged against the Sellers as Settled Losses of the Buyer pro rata under the Escrow Agreement.
Appears in 1 contract
Manner of Indemnification. Upon the occurrence of an Event of Indemnity, the Buyer may, at or at any time after such occurrence, notify the Seller(s) from whom indemnification is sought (the "Indemnifying Sellers") and Escrow Agent thereof, stating specifically the obligation(s) with respect to which the claim is made, the facts giving rise to and alleged basis for such claim, and the amount of the Loss incurred or that may be incurred by reason thereof (a "Notice of Claim"). If the Buyer makes a demand for indemnification with respect to an Event of Indemnity for which more than one Indemnifying Seller would be liable under this Agreement, it shall make such demand against the Indemnifying Sellers that would be liable for said Event of Indemnity. Within 30 days after the mailing of such notice, the Indemnifying Sellers shall, subject to Section 7.4, either (a) notify Within thirty (30) days of receipt by Seller of notice of a claim by Buyer Indemnitees, Seller shall (a) if such claim is a claim by a third party, assume the Buyer and Escrow Agent that they accept the amount defense of such indemnification claim or settle such claim and instruct Buyer Indemnitees to obtain payment for the defense or authorized settlement of such claim from the Escrow Account as set forth in the Escrow Agreement, and pay the balance of the claim if the funds in the Escrow Account are not sufficient to satisfy it, or (b) if such claim is a direct claim by Buyer, (i) admit such claim and instruct Buyer Indemnitees to obtain payment for such claim from the Escrow Account as set forth in the Escrow Agreement and pay the balance of the claim if the funds in the Escrow Account are not sufficient to satisfy it; or (ii) deliver to Buyer Indemnitees written notice of disagreement with such claim specifying in reasonable detail the nature and extent of the disagreement.
(b) If Seller does not respond to notice of an indemnity claim as set forth in the Notice Section 12.5(a) within thirty (30) days of Claimreceipt of such notice, Buyer Indemnitees, in whole or in parttheir sole discretion, and instruct without prejudice to any other legal remedy available to them, may obtain payment for the full amount of such claim from the Escrow Agent to charge such accepted amount against the Sellers pro rata under Account as set forth in the Escrow Agreement, with any balance due being payable on demand from the Seller Indemnifying Parties.
(c) Within thirty (30) days of receipt by Buyer of notice of a claim by Seller Indemnitees, Buyer shall (i) (a) if such claim is a claim by a third party, assume the defense of such claim or irrevocably commit to pay the such claim or the authorized settlement thereof, or (b) deny or dispute the alleged occurrence of such Event of Indemnity as asserted in the Notice of Claim by the Buyer. If such Event of Indemnity relates to a claim by a person or persons other than the Buyer, and the amount of if such claim is fully covered a direct claim by the foregoing indemnity, as limited by Section 7.4 hereof, the Indemnifying Sellers or any of them may elect, within said 30-day period, to defend against Seller Indemnitees admit such claim at their expense, and pay such claim; or (ii) deliver to Seller Indemnitees written notice of disagreement with such claim specifying in lieu reasonable detail the nature and extent of the Buyer assuming such defense. If the Indemnifying Sellers or any of them elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer. If the Loss incurred relates to the failure of a Seller to collect any note or account receivable and if any Indemnifying Sellers pay in full the unpaid balance thereof to the Buyer, the Buyer will cause the Company to assign said note or account without recourse to the Sellers paying same. If within said 30-day period, none of the Indemnifying Sellers has, with respect to an Event of Indemnity, taken the action required to be taken within said period, the amount set forth in Buyer's Notice of Claim with respect to such Event of Indemnity shall be deemed to be charged against the Sellers as Settled Losses of the Buyer pro rata under the Escrow Agreementdisagreement.
Appears in 1 contract
Manner of Indemnification. Upon All Claims against a Stockholder for indemnification pursuant to this Agreement shall be satisfied by commencing the occurrence procedures set forth in Section 7.13 within 5 days after the expiration of an Event of Indemnity, 180 days from the Buyer may, at or at any time after such occurrence, notify the Seller(s) from whom indemnification is sought Effective Time (the "Indemnifying Sellers") and Escrow Agent thereof, stating specifically the obligation(s) with respect to which the claim is made, the facts giving rise to and alleged basis for such claim, and the amount of the Loss incurred or that may be incurred by reason thereof (a "Notice of ClaimIndemnification Settlement Date"). If the Buyer makes a demand for indemnification with respect Any Claim Notice delivered on or prior to an Event of Indemnity for which more than one Indemnifying Seller would be liable under this Agreement, it shall make such demand against the Indemnifying Sellers that would be liable for said Event of Indemnity. Within 30 days after the mailing of such notice, the Indemnifying Sellers shall, subject to Section 7.4, either (a) notify the Buyer and Escrow Agent that they accept the amount of such indemnification claim as set forth in the Notice of Claim, in whole or in part, and instruct the Escrow Agent to charge such accepted amount against the Sellers pro rata under the Escrow Agreement, or (b) deny or dispute the alleged occurrence of such Event of Indemnity as asserted in the Notice of Claim by the Buyer. If such Event of Indemnity relates to a claim by a person or persons other than the Buyer, and the amount of such claim is fully covered by the foregoing indemnity, as limited by Section 7.4 hereof, the Indemnifying Sellers or any of them may elect, within said 30180-day period, to defend against such claim at their expense, in lieu of the Buyer assuming such defense. If the Indemnifying Sellers or any of them elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer. If the Loss incurred relates to the failure of a Seller to collect any note or account receivable and if any Indemnifying Sellers pay in full the unpaid balance thereof to the Buyer, the Buyer will cause the Company to assign said note or account without recourse to the Sellers paying same. If within said 30-day period, none of the Indemnifying Sellers has, with respect to an Event of Indemnity, taken the action required to be taken within said period, the amount set forth in Buyer's Notice of Claim with respect to such Event of Indemnity period shall be deemed to be charged against the Sellers as Settled Losses notice required by the second sentence of Section 7.13(a). An Indemnified Person (or Acquiror on that Indemnified Person's behalf) will first seek indemnity under this Agreement by following the Buyer pro rata under procedures stated in Section 7.13 and the Escrow Agreement with respect to Claims based on Section 6.1(a) with any and all distributions to an Indemnified Person from the Escrow Fund to be drawn according to the Escrow Agreement. With respect to Claims pursuant to Section 6.1(b) asserted by an Indemnified Person (or Acquiror on that Indemnified Person's behalf), the Indemnified Person will first seek indemnity under this Agreement by following the procedures stated in Section 7.13. The Indemnifying Person shall satisfy any amounts owed pursuant to a request for indemnity based on the preceding sentence, subject to the applicable limitations in Articles 6 and 7 hereof, by wire transfer, payment of cash, or delivery of a certified or cashier's check to Acquiror. If Acquiror becomes liable to pay any amount under this Agreement pursuant to Section 6.2, Acquiror has the right (but not the obligation) to set off that amount against any amounts that it may be entitled to under this Article 6, otherwise such amounts shall be payable by wire transfer, payment of cash, or delivery of a certified or cashier's check to the Indemnified Person. The indemnification rights provided by Article 6 of this Agreement shall be the sole and exclusive remedy to the Indemnified Persons for breaches of this Agreement and for other matters pertaining to this Agreement and the transactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (Nuevo Energy Co)
Manner of Indemnification. Upon A. The Buyer Indemnified Parties may seek payment for any and all Claims for indemnification hereunder by cash payment from any or all of the occurrence Shareholders. The Company shall remain liable for amounts which the Buyer Indemnified Parties do not recover from the Shareholders. Any and all Claims shall be satisfied by the payment of an Event cash to the Buyer Indemnified Parties for the full amount of Indemnitysuch claim. If the indemnifying parties fail to satisfy a Claim for indemnity through the payment of cash, the Buyer mayIndemnified Parties, in their sole discretion, without prejudice to any other legal remedy available to them, may offset the full or partial amount of such Claim against any or all payments, where currently due and payable or payable in the future, under any other agreement between the indemnifying party and the Purchaser.
B. Notwithstanding the foregoing, before seeking payment from either of the Shareholders for any Claims for indemnification based upon a breach of the representations made in Section 3.32, the Buyer Indemnified Parties (or the Company at or at any time the direction of the Buyer Indemnified Parties) shall first seek payment from the vendors under the Acquisition Agreements. If, after taking all reasonable acts, including pursuing litigation, the Buyer Indemnified Parties are unable to recover the full amount of such occurrence, notify the Seller(sClaim(s) from whom indemnification is sought (such vendors, then the "Indemnifying Sellers") and Escrow Agent thereof, stating specifically Buyer Indemnified Parties may seek payment from the obligation(s) with respect to which Shareholders for the claim is madeunpaid balance of such Claims.
C. For purposes of this Agreement, the facts giving rise Shareholders, without any further action on the part of any such Shareholder, shall be deemed to have consented to the appointment of the Shareholder Representative as attorney-in-fact for and alleged basis for on behalf of each such claimShareholder, and the amount taking by the Shareholder Representative of any and all actions and the Loss incurred making of any decisions required or that may permitted to be incurred taken by reason thereof (a "Notice of Claim"). If the Buyer makes a demand for indemnification with respect to an Event of Indemnity for which more than one Indemnifying Seller would be liable him under this Agreement, it shall make such demand against including the Indemnifying Sellers that would be liable exercise of the power to (i) agree to, negotiate, enter into settlements and compromises of and comply with the orders of courts and awards of arbitrators with respect to Claims of the Buyer Indemnified Parties, (ii) resolve any Claims asserted by the Buyer Indemnified Parties, and (iii) take all actions necessary in the judgment of the Shareholder Representative for said Event the accomplishment of Indemnitythe foregoing and all of the other terms, conditions and limitations of this Agreement. Within 30 days after the mailing of such noticeAccordingly, the Indemnifying Sellers shallShareholder Representative has unlimited authority and power to act on behalf of each Shareholder with respect to this Agreement and the disposition, subject to Section 7.4, either (a) notify settlement or other handling of all Claims asserted by the Buyer Indemnified Parties, rights or obligations arising from and Escrow Agent that they accept the amount of such indemnification claim as set forth in the Notice of Claim, in whole or in part, and instruct the Escrow Agent taken pursuant to charge such accepted amount against the Sellers pro rata under the Escrow this Agreement, or (b) deny or dispute the alleged occurrence of such Event of Indemnity as asserted in the Notice of Claim . The Shareholders will be bound by all actions taken by the Buyer. If such Event of Indemnity relates to a claim by a person or persons other than the BuyerShareholder Representative in connection with this Agreement, and the amount of such claim is fully covered by the foregoing indemnity, as limited by Section 7.4 hereof, the Indemnifying Sellers Purchaser shall be entitled to rely in all respects on any action or any of them may elect, within said 30-day period, to defend against such claim at their expense, in lieu decision of the Buyer assuming such defenseShareholder Representative. If the Indemnifying Sellers or any of them elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer. If the Loss incurred relates to the failure of a Seller to collect any note or account receivable and if any Indemnifying Sellers pay in full the unpaid balance thereof to the Buyer, the Buyer The Shareholder Representative will cause the Company to assign said note or account without recourse to the Sellers paying same. If within said 30-day period, none of the Indemnifying Sellers has, incur no liability with respect to an Event of Indemnityany action taken or suffered by him in reliance upon any notice, taken the action required direction, instruction, consent, statement or other document believed by him to be taken within said periodgenuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except his own willful misconduct or gross negligence. At any time, the amount set forth holders of a majority in Buyer's Notice of Claim with respect to such Event of Indemnity shall be deemed to be charged against the Sellers as Settled Losses interest of the Buyer pro rata under Ordinary Shares may appoint a new Shareholder Representative by written consent by sending notice and a copy of the Escrow Agreementwritten consent appointing such new Shareholder Representative signed by the holders of a majority in interest of the Ordinary Shares to the Purchaser. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by the Purchaser.
Appears in 1 contract
Samples: Share Purchase Agreement (Mobile Services Group Inc)
Manner of Indemnification. Upon the occurrence of an Event of Indemnity, the Buyer Parent may, at or at any time after such occurrence, notify the Seller(sStockholder(s) from whom indemnification is sought (the "Indemnifying SellersStockholders") and Escrow Agent thereof, stating specifically the obligation(s) with respect to which the claim is made, the facts giving rise to and alleged basis for such claim, and the amount of the Loss incurred or that may be incurred by reason thereof (a "Notice of Claim"). If the Buyer Parent makes a demand for indemnification with respect to an Event of Indemnity for which more than one Indemnifying Seller Stockholder would be liable under this Agreement, it shall make such demand against the Indemnifying Sellers Stockholders that would be liable for said Event of Indemnity. Within 30 days after the mailing of such notice, the Indemnifying Sellers Stockholders shall, subject to Section 7.49.4, either (a) notify the Buyer and Escrow Agent and the Parent that they accept the amount of such indemnification claim as set forth in the Notice of Claim, in whole or in part, and instruct the Escrow Agent to charge such accepted amount against the Sellers Stockholders pro rata under the Escrow Agreement, or (b) notify the Escrow Agent and the Parent that they deny or dispute the alleged occurrence of such Event of Indemnity as asserted in the Notice of Claim by the BuyerParent. If such Event of Indemnity relates to a claim by a person or persons other than the BuyerParent or a Constituent Corporation, and the amount of such claim is fully covered by the foregoing indemnity, as limited by Section 7.4 9.4 hereof, the Indemnifying Sellers Stockholders or any of them may elect, within said 30-day period, to defend against such claim at their expense, in lieu of the Buyer Parent or a Constituent Corporation assuming such defense. If the Indemnifying Sellers Stockholders or any of them elect to assume such defense, they shall retain counsel reasonably satisfactory to the BuyerParent. If the Loss incurred relates to the failure of a Seller to collect any note or account receivable and if any Indemnifying Sellers pay in full the unpaid balance thereof to the Buyer, the Buyer will cause the Company to assign said note or account without recourse to the Sellers paying same. -39- 45 If within said 30-day period, none of Of the Indemnifying Sellers Stockholders has, with respect to an Event of Indemnity, taken the action required to be taken within said period, the amount set forth in Buyerthe Parent's Notice of Claim with respect to such Event of Indemnity shall be deemed to have been accepted by the Stockholders under this Section 9.3 and shall be charged against the Sellers Stockholders as Settled settled Losses of the Buyer Parent pro rata under the Escrow Agreement.
Appears in 1 contract
Samples: Merger Agreement (Riscorp Inc)
Manner of Indemnification. Upon A. The Buyer Indemnified Parties may seek payment for any and all Claims for indemnification hereunder, at the occurrence Buyer Indemnified Party's sole discretion, by any one or a combination of an Event the following: (i) cash payment from any or all of Indemnitythe Indemnity Shareholders and/or (ii) cash payment from the Escrow Account and/or (iii) foreclosing on the shares secured by the Pledge Agreements, subject only to the limitations set forth in Section 9.2(C) hereof. The Company shall remain liable for amounts which the Buyer Indemnified Parties do not recover from the Indemnity Shareholders or the Escrow Account. Any and all Claims shall be satisfied by the payment of cash to the Buyer Indemnified Parties for the full amount of such claim. If the indemnifying parties fail to satisfy a Claim for indemnity through the payment of cash, the Buyer mayIndemnified Parties, at in their sole discretion, without prejudice to any other legal remedy available to them, may offset the full or at partial amount of such Claim against any time after such occurrenceor all payments, notify where currently due and payable or payable in the Seller(s) from whom indemnification is sought (future, under any other agreement between the "Indemnifying Sellers") indemnifying party and Escrow Agent thereof, stating specifically the obligation(s) with respect to which the claim is madeWindward.
B. For purposes of this Agreement, the facts giving rise Escrowed Shareholders, without any further action on the part of any such Escrowed Shareholder, shall be deemed to have consented to the appointment of the Shareholder Representative as attorney-in-fact for and alleged basis for on behalf of each such claimEscrowed Shareholder, and the amount taking by the Shareholder Representative of any and all actions and the Loss incurred making of any decisions required or that may permitted to be incurred taken by reason thereof (a "Notice of Claim"). If the Buyer makes a demand for indemnification with respect to an Event of Indemnity for which more than one Indemnifying Seller would be liable him under this Agreement, it shall make such demand against including the Indemnifying Sellers that would be liable for said Event exercise of Indemnity. Within 30 days after the mailing power to (i) authorize delivery to Windward, WCL and WCI of such noticethe Escrow Amount, the Indemnifying Sellers shallor any portion thereof, subject to Section 7.4, either (a) notify in satisfaction of Claims by the Buyer and Escrow Agent that they accept the amount of such indemnification claim as set forth in the Notice of Claim, in whole or in part, and instruct the Escrow Agent to charge such accepted amount against the Sellers pro rata under the Escrow Agreement, or (b) deny or dispute the alleged occurrence of such Event of Indemnity as asserted in the Notice of Claim by the Buyer. If such Event of Indemnity relates to a claim by a person or persons other than the Buyer, and the amount of such claim is fully covered by the foregoing indemnity, as limited by Section 7.4 hereof, the Indemnifying Sellers or any of them may elect, within said 30-day period, to defend against such claim at their expense, in lieu of the Buyer assuming such defense. If the Indemnifying Sellers or any of them elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer. If the Loss incurred relates to the failure of a Seller to collect any note or account receivable and if any Indemnifying Sellers pay in full the unpaid balance thereof to the Buyer, the Buyer will cause the Company to assign said note or account without recourse to the Sellers paying same. If within said 30-day period, none of the Indemnifying Sellers has, with respect to an Event of Indemnity, taken the action required to be taken within said period, the amount set forth in Buyer's Notice of Claim with respect to such Event of Indemnity shall be deemed to be charged against the Sellers as Settled Losses of the Buyer pro rata under the Escrow Agreement.Indemnified Parties,
Appears in 1 contract
Samples: Agreement and Plan of Merger (Mobile Services Group Inc)
Manner of Indemnification. Upon (a) If EMKT, FMI or the occurrence Surviving Corporation shall have an indemnity claim under any provision of this Agreement, then, provided that they comply with the proceedure st forth in Section 8.7(b), they shall be entitled to receive out of the Indemnification Holdback that number of shares of FMI Stock, valued at $13.50 per share, as is required to satisfy such indemnification obligation to the extent such indemnification obligation is not fully paid or reimbursed by insurance.
(b) EMKT or FMI shall give written notice to the Principal Sellers specifying the nature and extent of any indemnification claim and requesting payment therefor. Within ten days of receipt of such notice the Principal Sellers shall either (i) provide written instructions to EMKT or FMI with a copy to Sellers to make the indemnification payment on a date which is mutually agreed to but which shall be at least within 30 days of the date of such notice or (ii) provide written notice to EMT or FMI objecting to such indemnification payment. If EMKT or FMI and Principal Sellers cannot reach an Event agreement regarding an indemnification payment within ten days of Indemnitynotice objecting to such indemnification payment, then the Buyer may, at or at any time after such occurrence, notify matter shall be submitted to arbitration pursuant to Section 9.16.
(c) Any claims for payment in respect of indemnity during the Seller(s) from whom indemnification is sought (period between the Closing and 18-month anniversary of the Closing ( the "Indemnifying SellersHoldback Release Date") shall be satisfied out of the Indemnification Holdback unless and Escrow Agent thereofuntil the Indemnification Holdback shall be depleted, stating specifically in which case EMKT, FMI or the obligation(s) with respect Surviving Corporation, as the case may be, shall be entitled to which payment directly from the claim is madeSellers. Any right of FMI, EMKT or the facts giving rise Surviving Corporation to payment out of the Indemnification Holdback is, in all cases, in addition to and alleged basis for such claimnot in substitution of any other rights or remedies available thereto under this Agreement, and any other agreement in respect of the Transactions or by operation of law or in equity, including the right to specific performance or injunctive relief. On the Holdback Release Date, any shares of FMI Stock remaining in the Indemnification Holdback shall be released to the Sellers. All indemnification payments required to be made in cash hereunder shall be effected by with payment of cash or delivery of a certified or official bank check in the amount of the Loss incurred or that may be incurred by reason thereof (a "Notice of Claim"). If the Buyer makes a demand for indemnification with respect to an Event of Indemnity for which more than one Indemnifying Seller would be liable under this Agreement, it shall make such demand against the Indemnifying Sellers that would be liable for said Event of Indemnity. Within 30 days after the mailing of such notice, the Indemnifying Sellers shall, subject to Section 7.4, either (a) notify the Buyer and Escrow Agent that they accept the amount of such indemnification claim as set forth in the Notice of Claim, in whole or in part, and instruct the Escrow Agent to charge such accepted amount against the Sellers pro rata under the Escrow Agreement, or (b) deny or dispute the alleged occurrence of such Event of Indemnity as asserted in the Notice of Claim by the Buyer. If such Event of Indemnity relates to a claim by a person or persons other than the Buyer, and the amount of such claim is fully covered by the foregoing indemnity, as limited by Section 7.4 hereof, the Indemnifying Sellers or any of them may elect, within said 30-day period, to defend against such claim at their expense, in lieu of the Buyer assuming such defense. If the Indemnifying Sellers or any of them elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer. If the Loss incurred relates to the failure of a Seller to collect any note or account receivable and if any Indemnifying Sellers pay in full the unpaid balance thereof to the Buyer, the Buyer will cause the Company to assign said note or account without recourse to the Sellers paying same. If within said 30-day period, none of the Indemnifying Sellers has, with respect to an Event of Indemnity, taken the action required to be taken within said period, the amount set forth in Buyer's Notice of Claim with respect to such Event of Indemnity shall be deemed to be charged against the Sellers as Settled Losses of the Buyer pro rata under the Escrow Agreementliability.
Appears in 1 contract
Samples: Merger Agreement (Emarketplace Inc)
Manner of Indemnification. Upon (a) Where the occurrence Company and the Shareholders are obligated to indemnify the Purchaser Indemnified Parties under either Section 8.1(a) or Section 8.1(b) after the Closing Date, such indemnity obligation shall be satisfied first out of (i) up to ten percent (10%) of the shares of Netzee Common Stock delivered by Netzee pursuant to Section 1.5(a)(i) or the proceeds thereof (any shares of Netzee Common Stock shall be valued for this purpose at the Average Price) and (ii) thereafter, by either (A) an Event offset against the Earnout Payments, if the Earnout Payments have not been made into the Escrow pursuant to Section 1.5(b)(iii) at or prior to the time such indemnity obligation is paid or (B) payment of Indemnitythe Earnout Payments from the Escrow, if the Buyer mayEarnout Payments have been made into the Escrow pursuant to Section 1.5(b)(iii) at or prior to the time such indemnity obligation is paid (the Netzee Common Stock shall be valued for this purpose at the Average Price), and, in the case of fraud or intentional breaches, at the option of Netzee, out of the other assets of the Company or the Shareholders or both, and such amounts shall, to the extent satisfied and deducted from payments to be made from (i) the ten percent (10%) of the shares of Netzee Common Stock delivered by Netzee pursuant to Section 1.5(a)(i) and (ii) the Earnout Payments, be deemed to be a reduction in the amount of Netzee Common Stock otherwise payable under this Agreement pursuant to the Escrow.
(b) Where the Company and the Shareholders are obligated to indemnify the Purchaser Indemnified Parties under Section 8.1(c) after the Closing Date, such indemnity obligation shall be satisfied first out of (i) up to one hundred percent (100%) of the shares of Netzee Common Stock delivered by Netzee pursuant to Section 1.5(a)(i) or the proceeds thereof (any shares of Netzee Common Stock shall be valued for this purpose at any the Average Price) and (ii) thereafter, by either (A) an offset against the Earnout Payments, if the Earnout Payments have not been made into the Escrow pursuant to Section 1.5(b)(iii) at or prior to the time after such occurrenceindemnity obligation is paid or (B) payment of the Earnout Payments from the Escrow, notify if the Seller(sEarnout Payments have been made into the Escrow pursuant to Section 1.5(b)(iii) from whom indemnification at or prior to the time such indemnity obligation is sought paid (the "Indemnifying Sellers"Netzee Common Stock shall be valued for this purpose at the Average Price), and, in the case of fraud or intentional breaches, at the option of Netzee, out of the other assets of the Company or the Shareholders or both, and such amounts shall, to the extent satisfied and deducted from payments to be made from (i) the one hundred percent (100%) of the shares of Netzee Common Stock delivered by Netzee pursuant to Section 1.5(a)(i) and Escrow Agent thereof(ii) the Earnout Payments, stating specifically be deemed to be a reduction in the obligation(samount of Netzee Common Stock otherwise payable under this Agreement pursuant to the Escrow.
(c) with respect Where the Purchaser and Netzee are obligated to which indemnify the claim is madeCompany and the Shareholders under Section 8.2 after the Closing Date, the facts giving rise to and alleged basis for such claim, and indemnity obligation shall be satisfied by payment of cash or delivery of a certified check in the amount of the Loss incurred or that may be incurred by reason thereof (a "Notice of Claim"). If the Buyer makes a demand for indemnification with respect to an Event of Indemnity for which more than one Indemnifying Seller would be liable under this Agreement, it shall make such demand against the Indemnifying Sellers that would be liable for said Event of Indemnity. Within 30 days after the mailing of such notice, the Indemnifying Sellers shall, subject to Section 7.4, either (a) notify the Buyer and Escrow Agent that they accept the amount of such indemnification claim as set forth in the Notice of Claim, in whole or in part, and instruct the Escrow Agent to charge such accepted amount against the Sellers pro rata under the Escrow Agreement, or (b) deny or dispute the alleged occurrence of such Event of Indemnity as asserted in the Notice of Claim by the Buyer. If such Event of Indemnity relates to a claim by a person or persons other than the Buyer, and the amount of such claim is fully covered by the foregoing indemnity, as limited by Section 7.4 hereof, the Indemnifying Sellers or any of them may elect, within said 30-day period, to defend against such claim at their expense, in lieu of the Buyer assuming such defense. If the Indemnifying Sellers or any of them elect to assume such defense, they shall retain counsel reasonably satisfactory to the Buyer. If the Loss incurred relates to the failure of a Seller to collect any note or account receivable and if any Indemnifying Sellers pay in full the unpaid balance thereof to the Buyer, the Buyer will cause the Company to assign said note or account without recourse to the Sellers paying same. If within said 30-day period, none of the Indemnifying Sellers has, with respect to an Event of Indemnity, taken the action required to be taken within said period, the amount set forth in Buyer's Notice of Claim with respect to such Event of Indemnity shall be deemed to be charged against the Sellers as Settled Losses of the Buyer pro rata under the Escrow Agreementindemnity obligation.
Appears in 1 contract
Manner of Indemnification. Upon the occurrence (a) Subject to Sections 5.5(b)-(d), 5.6 and 5.7, within thirty (30) days of receipt of an Event of Indemnityindemnification notice by the Indemnifying Party: (i) if the Indemnifying Party is the Parent, the Buyer may, at or at any time after Parent Indemnifying Party shall satisfy such occurrence, notify claim by the Seller(spayment of cash to the Shareholders Indemnified Party for the full amount of such claim; and (ii) from whom indemnification if the Indemnifying Party is sought (the "Shareholders Indemnifying Sellers") and Escrow Agent thereof, stating specifically the obligation(s) with respect to which the claim is madeParty, the facts giving rise Shareholders Indemnifying Party shall satisfy such claim either by the payment of cash to and alleged basis the Parent/Sub Indemnified Party or by surrender of the Cash Escrow and/or Share Escrow, as so requested by Parent/Sub Indemnified Party in its notice, for the full amount of such claim, and the amount of the Loss incurred or that may be incurred by reason thereof (a "Notice of Claim"). If the Buyer makes Escrow Fund (as decreased from time to time as
(b) If the Indemnifying Party disagrees with the claim for indemnification, it shall, within thirty (30) days of receipt of notice, deliver to the Indemnified Party written notice of disagreement with such claim specifying in reasonable detail the nature and extent of the disagreement. In the event that the Indemnifying Party delivers such notice of disagreement within said thirty (30) day period, the Indemnified Party shall have no right to indemnification for such disputed claim hereunder until the parties resolve the dispute.
(c) If a demand for indemnification with respect Principal or Shareholder is an Indemnifying Party and fails to respond to an Event indemnity claim as set forth in Section 5.5(a) or 5.5(b) hereof within thirty (30) days of Indemnity for which more than one Indemnifying Seller would be liable under this Agreement, it shall make such demand against the Indemnifying Sellers that would be liable for said Event of Indemnity. Within 30 days after the mailing receipt of such notice, the Indemnifying Sellers shallParent/Sub Indemnified Party, subject in its sole discretion, without prejudice to Section 7.4any other legal remedy available to it, either may (ai) notify obtain payment for the Buyer and Escrow Agent that they accept the full amount of such indemnification claim from the Escrow Fund as set forth in the Notice of Claim, in whole or in part, and instruct the Escrow Agent to charge such accepted amount against the Sellers pro rata under the Escrow Agreement, or (bii) deny or dispute obtain payment from the alleged occurrence Shareholders in cash.
(d) For the purpose of compensating the Parent/Sub Indemnified Party for its damages pursuant to this Agreement, the Stock Escrow shall be valued at either: (i) the average closing sale price for the Parent Common Stock on the registered national exchange providing the primary market in such Event securities for the ten (10) consecutive trading day period prior to the date of Indemnity an indemnification notice sent by Parent; (ii) if the Parent Common Stock is not traded on a national registered exchange, the average of the closing bid prices as asserted in the Notice of Claim reported by the Buyer. If such Event National Association of Indemnity relates Securities Dealers Automated Quotation System for the ten (10) consecutive day period prior to a claim the date of an indemnification notice sent by a person Parent; (iii) if neither (i) or persons other than (ii) is applicable, the Buyeraverage of the closing bid and ask prices of the Parent Common Stock for the ten (10) consecutive day period prior to the date of an indemnification notice sent by Parent as quoted on the OTC Bulletin Board; or (iv) if the securities are not traded or reported, and the amount of such claim is fully covered by the foregoing indemnitydetermination of the Board of Directors of Parent; provided, as limited by however, notwithstanding the foregoing, for purposes of this Section 7.4 hereof5.5(d), the Indemnifying Sellers or any price per share of them may elect, within said 30-day period, to defend against such claim at their expense, in lieu of the Buyer assuming such defense. If the Indemnifying Sellers or any of them elect to assume such defense, they Parent Common Stock shall retain counsel reasonably satisfactory to the Buyer. If the Loss incurred relates to the failure of a Seller to collect any note or account receivable not be less than $0.145; and if any Indemnifying Sellers pay in full the unpaid balance thereof to the Buyer, the Buyer will cause the Company to assign said note or account without recourse to the Sellers paying same. If within said 30-day period, none of the Indemnifying Sellers has, with respect to an Event of Indemnity, taken the action required to be taken within said period, the amount set forth in Buyer's Notice of Claim with respect to such Event of Indemnity provided that this Section 5.5(d) shall be deemed subject to be charged against the Sellers as Settled Losses of the Buyer pro rata under the Escrow Agreementequitable adjustment upon any reclassification, share combination, share subdivision, share dividend, share exchange or other similar transaction or event.
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