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Common use of Notice of Claims Clause in Contracts

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 3 contracts

Samples: Asset Purchase Agreement, Asset Purchase Agreement (Allscripts Healthcare Solutions, Inc.), Asset Purchase Agreement (NantHealth, Inc.)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) seeking indemnification hereunder shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided, that a Claim Notice in respect of (i) any pending or threatened claim, action at law or suit in equity by or against a third Person as to which indemnification will be sought (each such claim, action or suit being a “Third Person Claim”) shall be given promptly after the action or suit is commenced and (ii) any Third Person Claim that involves a written demand by a third Person that the Company repurchase any mortgage loan sold to such third Person shall be given within ten (10) days after the Company’s receipt of such written demand; provided further that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except (and only) to the extent it shall have been materially prejudiced by such failure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article ARTICLE XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 3 contracts

Samples: Equity Purchase Agreement, Equity Purchase Agreement (Impac Mortgage Holdings Inc), Equity Purchase Agreement

Notice of Claims. (a) Any Buyer Group Member If a Party (the Claimant Party) wishes to make a Claim against another Party (the Defendant Party), the Claimant Party shall, subject to the terms of the Third Party Claims and Investigations Management Agreement to the extent such a Claim arises from a Third Party Claim or Seller Group Member seeking indemnification hereunder an Investigation, as soon as reasonably practicable after becoming aware of the facts or circumstances giving rise to such Claim (including any written demand or claim that is asserted against the Claimant Party by a Third Party), give written notice to the Defendant Party (the Claim Notice) containing reasonably specific details of the Claim, including such Information as is available to the Claimant Party (or believing its Affiliates) to assess the Claim and, to the extent reasonably practicable, the Claimant Party’s estimate (on a without prejudice basis), on the basis of the Information then available to the Claimant Party, of the amount of the Liabilities which are, or are to be, the subject of the Claim (if known) and the method of computation thereof. To the extent a reasonable estimate and/or method of computation cannot reasonably be provided in good faith that it may suffer or incur Losses or Expenses for which it is or may be the Claim Notice, the Claimant Party shall provide such Information to the Defendant Party as soon as reasonably practicable thereafter. For the purposes of this Clause 16 (Claims), “Affiliates” of each of Alcon and Novartis shall include the respective current and former shareholders, directors, officers, managers, members, agents and employees who are entitled to indemnification hereunderpursuant to Clause 13 (Mutual Release and Indemnification). (b) Following the delivery of a Claim Notice pursuant to Clause 16.2(a), the Defendant Party shall have a period of forty-five (45) days within which to object to any such notice, stating whether it disputes the “Indemnified existence or scope of an obligation to indemnify the Claimant Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice , and describing in reasonable detail the facts giving rise to any claim basis for indemnification hereunder its objection thereto. If the Defendant Party does not so respond within such forty-five (a “Claim Notice”) as promptly as practicable and shall include in 45)-day period stating that the Defendant Party disputes its liability for such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) After the giving of any Claim Notice pursuant heretoClaim, the amount of indemnification to which an Indemnified Defendant Party shall be entitled under this Article XI shall deemed to be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determineddisputing such Claim. (c) In calculating any Loss or Expense there If, the parties are disputing a Claim following the procedure outlined above, the provisions of Clause 41 (Dispute Resolution) shall apply. (d) The regime provided for in this Clause 16.2 (Notice of Claims) shall be deducted in lieu of, and not in addition to, any insurance recovery Claimant Party’s duty to immediately inspect and notify the Defendant Party in respect thereof (and no right of subrogation shall accrue hereunder to any insurer)accordance with article 201 CO.

Appears in 3 contracts

Samples: Separation and Distribution Agreement (Alcon Inc), Separation and Distribution Agreement (Alcon Inc), Separation and Distribution Agreement (Alcon Inc)

Notice of Claims. (a) Any Buyer Group Member Purchaser Indemnitee or Seller Group Member seeking indemnification hereunder (or believing in good faith Indemnitee claiming that it may suffer has suffered or incur Losses or Expenses incurred any Loss for which it is or may be entitled to indemnification hereunder) under this Article VIII (the “Indemnified Party”) shall give prompt written notice to the party obligated to provide Party from whom indemnification to such Indemnified Party is sought (the “IndemnitorIndemnifying Party”) of the matter, action, cause of action, claim, demand, fact or other circumstances upon which a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder under this Article VIII (each, a “Claim NoticeClaim”) may be based. Such notice shall contain, with respect to each Claim, such facts and information as promptly as practicable and shall include in are then reasonably available with respect to such Claim Notice (to Claim, including a description of the extent then known) Losses suffered or incurred by the Indemnified Party, the amount or estimated amount of such Losses (if known or reasonably capable of estimation) and the method of computation of the amount of such claimLosses, and a reference to the provision provisions of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon respect of which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it Loss shall have been prejudiced by such failure. (b) After the giving of occurred. If any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) is based on any Legal Proceeding instituted by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means third party with respect to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating intends to claim any Loss under this Article VIII (a “Third Party Claim”), the Indemnified Party shall promptly notify (the “Third Party Claim Notice”), in writing, the Indemnifying Party of such Third Party Claim and offer to tender to the Indemnifying Party the defense of such Third Party Claim. A failure by the Indemnified Party to give written notice of and to offer to tender the defense of any Third Party Claim in a timely manner pursuant to this Section 8.03 shall not limit the obligation of the Indemnifying Party under this Article VIII, except (a) to the extent such Indemnifying Party is actually prejudiced thereby or Expense there shall be deducted any insurance recovery (b) as provided in respect thereof (and no right of subrogation shall accrue hereunder to any insurer)Section 8.05.

Appears in 3 contracts

Samples: Asset Purchase Agreement (Assertio Therapeutics, Inc), Asset Purchase Agreement (Collegium Pharmaceutical, Inc), Asset Purchase Agreement (Assertio Therapeutics, Inc)

Notice of Claims. If either a Buyer Indemnified Party, on the one hand, or a Seller Indemnified Party, on the other hand (a) Any such Buyer Group Member or Indemnified Party on the one hand and such Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled Indemnified Party on the other hand being hereinafter referred to indemnification hereunder) (the as an “Indemnified Party”) shall give to ), has suffered or incurred any Losses for which indemnification may be sought under this ARTICLE 6, the party obligated to provide indemnification to such Indemnified Party shall so notify the other party from whom indemnification is sought under this ARTICLE 6 (the “IndemnitorIndemnifying Party”) a notice promptly in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss, the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of the amount of such claimLoss, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon respect of which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it Loss shall have been prejudiced occurred. If any claim, action, suit or proceeding is asserted or instituted by such failure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification or against a Third Party with respect to which an Indemnified Party shall be entitled intends to claim any Loss under this Article XI shall be determined: (i) by the written agreement between the ARTICLE 6, such Indemnified Party shall promptly notify the Indemnifying Party of such claim, action, suit or proceeding and tender to the Indemnitor; (ii) Indemnifying Party the defense of such claim, action, suit or proceeding. A failure by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the an Indemnified Party to give notice and to tender the Indemnitor defense of such claim, action, suit or proceeding in a timely manner pursuant to this Section 6.2 shall agree. The judgment or decree not limit the obligation of a court shall be deemed final when the time for appealIndemnifying Party under this ARTICLE 6, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedexcept to the extent such Indemnifying Party is actually prejudiced thereby. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 3 contracts

Samples: Funding Agreement (Kodiak Sciences Inc.), Funding Agreement (Biohaven Pharmaceutical Holding Co Ltd.), Funding Agreement (Biohaven Pharmaceutical Holding Co Ltd.)

Notice of Claims. If a Claim is asserted against a Person for which a Party may have Indemnity Obligations under this Agreement (an “Indemnity Claim”), the indemnified Person shall give the indemnifying Party written notice of the underlying Claim setting forth the particulars associated with the underlying Claim (including a copy of the written underlying Claim, if any) as then known by the indemnified Person (“Indemnity Claim Notice”). For Indemnity Claims with respect to which the Individual Indemnity Threshold in Section 4.4 applies, an Indemnity Claim shall be deemed to have been made (subject to the provisions of Section 4.4) upon the indemnified Person’s providing an initial Indemnity Claim Notice to the indemnifying Party stating that the Claim underlying the Indemnity Claim could reasonably be expected to exceed the Individual Indemnity Threshold. The indemnified Person shall, to the extent practicable, give an Indemnity Claim Notice within such time as will allow the indemnifying Party a reasonable period in which to evaluate and timely respond to the underlying Claim; provided, (a) Any Buyer Group Member or Seller Group Member seeking indemnification failure to do so shall not affect an indemnified Person’s rights hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable except for, and shall include in such Claim Notice (only to the extent then known) that, such failure results in insufficient time being available to permit the amount indemnifying Party to effectively defend against the Claim or otherwise materially prejudices the method indemnifying Party’s ability to defend against the Claim through the forfeiture of computation of the amount of such claim, substantive rights or defenses; and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) After the giving foregoing shall not extend the time period set forth in Section 4.4(a) (if applicable to the Claim), but if an Indemnity Claim Notice is given to an indemnifying Party within the applicable time period (if any) with respect to such Claim set forth in Section 4.4(a), such Indemnity Claim Notice shall be effective, subject to the other limitations in Section 4.4 (if applicable), as to costs and expenses incurred or suffered after the expiration of any such time period, with respect to the matter described in such Indemnity Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedNotice. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 3 contracts

Samples: Purchase and Sale Agreement (Atlas Energy Group, LLC), Purchase and Sale Agreement (EP Energy LLC), Purchase and Sale Agreement (Atlas Resource Partners, L.P.)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the "Indemnified Party") seeking indemnification hereunder shall, within the relevant limitation period provided for in Section 10.1 above, give to IHC and Seller (together, the "Indemnitor”) "), a notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim claims for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document certificate or instrument executed hereunder pursuant hereto or in connection herewith upon which such claim is based; provided, that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced; and provided further, that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been materially prejudiced by such failure. (b) After The Indemnitor shall have thirty (30) days after the giving of any Claim Notice pursuant hereto, hereto to (i) agree to the amount or method of indemnification determination set forth in the Claim Notice and to which an pay such amount to such Indemnified Party in immediately available funds, or (ii) to provide such Indemnified Party with notice that it disagrees with the amount or method of determination set forth in the Claim Notice (the "Dispute Notice"). Within fifteen (15) days after the giving of the Dispute Notice, representatives of Indemnitor and such Indemnified Party shall be entitled under this Article XI negotiate in a bona fide attempt to resolve the matter. In the event that the controversy is not resolved within thirty (30) days of the giving of the Dispute Notice, the parties shall be determined: proceed to binding arbitration construed in accordance with the Federal Arbitration Act, 9 U.S.C. Section 1, et seq. pursuant to the following procedures: (i) Any party may send another party written notice identifying the matter in dispute and invoking the procedures of this Section. Within fourteen (14) days, each party involved in the dispute shall meet at a mutually agreed location in New York, New York, for the purpose of determining whether they can resolve the dispute themselves by written agreement, and, if not, whether they can agree upon a third-party arbitrator to whom to submit the written agreement between the Indemnified Party matter in dispute for final and the Indemnitor; binding arbitration. (ii) If such parties fail to resolve the dispute by written agreement or agree on the Arbitrator within said 14-day period, any such party may submit the matter in dispute to arbitration before the American Arbitration Association ("AAA") for the appointment of a final judgment or decree single arbitrator (the "Arbitrator") to resolve the dispute by arbitration. Except as provided in this Agreement, such arbitration shall be in accordance with the Commercial Arbitration Rules of any court of competent jurisdiction; or the AAA currently in effect. Such arbitration shall take place in New York, New York. (iii) Within thirty (30) days of the selection of the Arbitrator, the parties involved in the dispute shall meet in New York, New York with such Arbitrator at a place and time designated by any other means to which such Arbitrator after consultation with such parties and present their respective positions on the Indemnified Party and the Indemnitor shall agreedispute. The judgment or decree decision of a court the Arbitrator shall be deemed made in writing no more than thirty (30) days following the end of the proceeding. Such an award shall be a final when and binding determination of the time for appeal, if any, dispute and shall have expired be fully enforceable as an arbitration decision in any court having jurisdiction and no appeal venue over such parties. The prevailing party (as determined by the Arbitrator) shall have been taken or when all appeals taken in addition be awarded by the Arbitrator such party's own attorneys' fees and expenses in connection with such proceeding. The non-prevailing party (as determined by the Arbitrator) shall have been finally determinedpay the Arbitrator's fees and expenses. (c) In calculating any Loss or Expense there A Claim shall be deducted any insurance recovery determined to be valid (i) if the Indemnitor agrees to the amount set forth in the Claim Notice; (ii) if the Indemnified Person does not timely receive a Dispute Notice from the Indemnitor; (iii) if the Indemnitor and Indemnified Person mutually agree upon an amount to settle the Claim; or (iv) upon the receipt of a final, non-appealable judgment, order or decree of the court or other judicial body or arbitrator or panel of arbitrators of competent jurisdiction that decided the underlying claim with respect thereof to such amount that indicates whether the Indemnified Person is entitled indemnification with regard to such Claim. Once a Claim is determined to be valid, the Indemnified Person shall provide written notice (and no right the "Resolved Dispute Notice") to the Indemnitor. Within five (5) Business Days after receipt of subrogation the Resolved Dispute Notice, the Indemnitor shall accrue hereunder distribute to any insurerthe Indemnified Person an amount in cash equal to the Claim (subject to the limitations set forth in Section 10.5).

Appears in 3 contracts

Samples: Stock Purchase Agreement (Independence Holding Co), Stock Purchase Agreement (Softnet Systems Inc), Stock Purchase Agreement (Madison Investors Corp)

Notice of Claims. (a) Any Buyer Group Member or Indemnified Party shall, within the limitation period provided for in Section 7.1, give, in the case of indemnification sought by: (i) any Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party, to Buyer; or (ii) shall give any Buyer Indemnified Party, to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) Seller, a written notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such that includes a general description of the facts giving rise to the claim for indemnification hereunder that is the subject of the Claim Notice (if and to the extent then known) the amount or the method of computation ), a good faith estimate of the amount of such claim, claim and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is basedbased along with disclosure of any policy of insurance which may afford coverage for all or part of such claim. A Claim Notice shall be given promptly following the claimant’s determination that facts or events give rise to a claim for indemnification hereunder; provided that the failure timely to give such written notice (i) shall not relieve the Indemnitor any Indemnifying Party of its obligations hereunder under this Article VII, except to the extent it shall have been actually and materially prejudiced by such failure, and (ii) shall not relieve any Indemnifying Party of any other obligation or liability it may have to any Indemnified Party otherwise than under this Article VII. (b) After An Indemnifying Party shall have sixty (60) days after the receipt of any proper Claim Notice pursuant hereto to: (i) agree to the amount set forth in the Claim Notice (the “Indemnification Amount”) and to pay or cause to be paid such amount to such Indemnified Party (A) in the case of a claim by the Seller Indemnified Parties, by wire transfer in immediately available funds, or (B) in the case of a claim by the Buyer Indemnified Parties, (1) by the Buyer and Seller jointly directing the Escrow Agent to release from the Indemnity Escrow Holdback Amount an amount equal to eighty percent (80%) of the Indemnification Amount, and (2) by Seller transferring back to Parent or a nominee thereof (for no consideration) from the Indemnity Holdback Shares the number of shares of Parent Stock equal to (x) twenty percent (20%) of the Indemnification Amount divided by (y) the Market Value as of the date of the Claim Notice; or (ii) provide such Indemnified Party with written notice that it disagrees with the claim set forth in the Claim Notice (the “Dispute Notice”). For a period of sixty (60) days after the giving of any Dispute Notice, a representative of the Indemnifying Party and the Indemnified Party shall negotiate in good faith to resolve the matter. In the event that the controversy is not resolved within sixty (60) days after the date the Dispute Notice is given, the Parties may thereupon proceed to pursue any and all available remedies at law. If the Indemnifying Party agrees to the Claim Notice pursuant heretoto clause (i) above or fails to provide a timely Dispute Notice pursuant to clause (ii) above, then: (x) if the amount of indemnification to which an Indemnified Party is a Buyer Indemnified Party, Buyer shall be entitled under this Article XI shall be determined: (i) to the indemnification payment released by the written agreement between Escrow Agent as contemplated by Section 7.5(b)(i)(B), or (y) if the Indemnified Party and is a Seller Indemnified Party, then Buyer shall, using its own immediately available funds, pay Seller the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which amount set forth in the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedClaim Notice. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 3 contracts

Samples: Asset Purchase Agreement (Waitr Holdings Inc.), Asset Purchase Agreement (Waitr Holdings Inc.), Asset Purchase Agreement (Waitr Holdings Inc.)

Notice of Claims. (a) Any Buyer Group Member Promptly after receipt by an indemnified party of written notice of the commencement of any investigation, claim, proceeding or Seller Group Member seeking indemnification hereunder other action in respect of which indemnity may be sought from the indemnitor under either Section 9.2 or 9.3 (or believing each, an “Action”), such indemnified party shall notify the indemnitor in good faith writing of the commencement of such Action; but the omission to so notify the indemnitor shall not relieve it from any liability that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give to the party obligated to provide indemnification otherwise have to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claimindemnified party, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it that the indemnitor is materially prejudiced or forfeits substantive rights or defenses as a result of such failure. In connection with any Action in which the indemnitor and any indemnified party are parties, the indemnitor shall be entitled to participate therein, and may assume the defense thereof. Notwithstanding the assumption of the defense of any such Action by the indemnitor, each indemnified party shall have been prejudiced the right to employ separate counsel and to participate in the defense of such Action, and the indemnitor shall bear the fees, costs and expenses of such separate counsel to such indemnified party if: (i) the indemnitor shall have agreed to the retention of such separate counsel, (ii) the defendants in, or target of, any such Action include more than one indemnified party or both an indemnified party and the indemnitor shall have concluded that representation of such indemnified party by the same counsel would be inappropriate due to actual or, as reasonably determined by such failureindemnified party’s counsel, potential differing interests between them in the conduct of the defense of such Action, or if there may be legal defenses available to such indemnified party that are different from or additional to those available to the other indemnified party or to the indemnitor, or (iii) the indemnitor shall have failed to employ counsel reasonably satisfactory to such indemnified party within a reasonable period of time after notice of the institution of such Action. If such indemnified party retains separate counsel in cases other than as described in clauses (i), (ii), or (iii) above, such counsel shall be retained at the expenses of such indemnified party. Except as provided above, it is hereby agreed and understood that the indemnitor shall not, in connection with any Action in the same jurisdiction, be liable for the fees and expenses of more than one counsel for all such indemnified parties (together with appropriate local counsel). The party from whom indemnification is sought shall not, without the written consent of the party seeking indemnification (which consent shall not be unreasonably withheld), settle or compromise any claim or consent to entry of any judgment that does not include an unconditional release of the party seeking indemnification from all liabilities with respect to such claim. (b) After In the giving of any Claim Notice pursuant heretoevent one party hereunder should have a claim for indemnification that does not involve a claim or demand being asserted by a third party, the amount party seeking indemnification shall promptly send notice of such claim to the party from whom indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedis sought. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Asset Purchase Agreement (Healthsouth Corp), Asset Purchase Agreement (Healthsouth Corp)

Notice of Claims. (a) Any Buyer Group Member If either Bank One, FDC or Seller Group Member seeking indemnification hereunder an Affiliate of either party (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to each an "Indemnified Party")shall seek indemnification hereunder) (the “, such Indemnified Party”) Party shall give promptly to the party obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided provided, however, that failure timely a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to give such notice which indemnification will be sought shall not relieve be given promptly after the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failureaction or suit is commenced. (b) In calculating any Loss or Expense there shall be deducted (i) any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer) and (ii) the amount of any tax benefit to the Indemnified Party (or any of its Affiliates) with respect to such Loss or Expense (after giving effect to the tax effect of receipt of the indemnification payments). (c) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI X shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have the burden of proof in establishing the amount of Loss and Expense suffered by it. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Contribution Agreement (First Data Corp), Contribution Agreement (Paymentech Inc)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may If any of the Persons to be entitled to indemnification hereunder) indemnified under this Article VII (the “Indemnified Party”) has suffered or incurred any Losses, the Indemnified Party shall give to so notify the party obligated to provide from whom indemnification to such Indemnified Party is sought (the “IndemnitorIndemnifying Party”) a notice promptly in writing describing in reasonable detail the facts event giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to Losses, the extent then known) basis upon which indemnity is being sought, the amount or estimated amount of the Losses, if known or reasonably capable of estimation, and the method of computation of the amount of such claimLosses, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon respect of which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it Losses shall have been prejudiced occurred. If any action at Law or suit in equity is instituted by such failure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by or against a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means third party with respect to which the Indemnified Party intends to claim any liability as a Loss under this Article VII, the Indemnified Party shall promptly notify the Indemnifying Party of such action or suit and tender to the Indemnitor Indemnifying Party the defense of such action or suit. A failure by the Indemnified Party to give notice and to tender the defense of the action or suit in a timely manner pursuant to this Section 7.4 shall agreenot limit the obligation of the Indemnifying Party under this Article VII, except (i) to the extent the rights of such Indemnifying Party is actually prejudiced thereby, (ii) to the extent expenses are incurred during the period in which notice was not provided, and (iii) as provided by Section 7.1. The judgment or decree In the event that the Indemnified Party commences an Action in order to recover Losses hereunder, upon final determination of a court of competent jurisdiction with respect thereto, the non prevailing party in such Action shall be deemed final when reimburse the time for appeal, if any, shall have expired prevailing party’s reasonable costs and no appeal shall have been taken or when all appeals taken shall have been finally determinedexpenses (including reasonable attorney’s fees) incurred in connection with such Action. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Implementation Agreement, Implementation Agreement (ICO Global Communications (Holdings) LTD)

Notice of Claims. (a) Any Buyer Group Member Except with respect to Tax Claims, which shall be governed exclusively by Article VI, any Acquiror Indemnified Party or Seller Group Member Indemnified Party seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”Party “) shall shall, within the relevant limitation period provided for in Section 9.1 above, give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”Indemnitor “) a notice (a “Claim Notice “) describing in reasonable detail the facts giving rise to any claim claims for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreementAncillary Agreement, document certificate or instrument executed hereunder pursuant hereto or in connection herewith upon which such claim is based; provided that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced and shall be subject to Section 9.6 below; provided, further, that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder hereunder, except to the extent it shall have been prejudiced by such failure. (b) After An Indemnitor shall have 30 days after the giving of any Claim Notice pursuant hereto, hereto to (i) agree to the amount or method of indemnification determination set forth in the Claim Notice and to which an pay such amount to such Indemnified Party in immediately available funds or (ii) provide such Indemnified Party with notice that it disagrees with the claim or the amount or method of determination set forth in the Claim Notice (the “Dispute Notice “). Within 15 days after the giving of the Dispute Notice, a representative of the Indemnitor and the Indemnified Party shall be entitled under this Article XI shall be determined: (i) by negotiate in a bona fide attempt to resolve the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedmatter. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Agreement and Plan of Merger (STR Holdings LLC), Agreement and Plan of Merger (STR Holdings (New) LLC)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member party (the "Indemnified Party") seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) under this Article X shall give to the party obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder pursuant hereto or in connection herewith upon which such claim is based; provided, that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced; provided further that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) After Subject to Section 10.4, after the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI X shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; or (ii) by an award from an arbitrator pursuant to Section 12.10 hereof or by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have the burden of proof in establishing the amount of Losses and Expenses suffered by it. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Agreement for Purchase and Sale of Licenses (Lynch Interactive Corp), Agreement for Purchase and Sale of Licenses (Sunshine PCS Corp)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member Covered Party seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for shall, within the Survival Period, give to the Party which it is or may be entitled obligated pursuant to this Article X to provide indemnification hereunder) as set forth herein (the “Indemnified Indemnifying Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any claim claims for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document certificate or instrument executed hereunder pursuant hereto or in connection herewith upon which such claim is based; provided, that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced; and provided further, that failure timely to give such notice shall not relieve the Indemnitor of its obligations affect such Covered Party’s right to indemnification hereunder except to the extent it the Indemnifying Party shall have been materially prejudiced by such failure. (b) After If the giving claim does not relate to a third-Person claim covered by Section 10.4, the Indemnifying Party shall have thirty (30) days after receipt of any Claim Notice pursuant hereto, the amount of indemnification hereto to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by agree to the written agreement between amount or method of determination set forth in the Indemnified Claim Notice to pay such amount to the Covered Party and the Indemnitor; in immediately available funds or (ii) by a final judgment to provide such Covered Party with notice that they disagree with the amount or decree method of any court of competent jurisdiction; or determination set forth in the Claim Notice (iiithe “Dispute Notice”) by any other means to which and thereafter comply with the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determineddispute resolution provisions set forth in Section 10.3(c). (c) In calculating any Loss If the Indemnifying Party provides a Dispute Notice, Purchaser and Seller will attempt to resolve the matters raised in such Dispute Notice in good faith. No less than ten (10) Business Days after delivery of the Dispute Notice, either Purchaser or Expense there Seller may provide written notice to the other (the “Non-Binding Arbitration Notice”) that it elects to submit the disputed items to non-binding arbitration by one (1) arbitrator chosen by mutual agreement of the Parties. If the Parties cannot agree on the choice of the arbitrator within a period of five (5) Business Days after delivery of the Non-Binding Arbitration Notice, the arbitrator shall be deducted appointed by the Court of Arbitration of the American Arbitration Association (the “AAA”) within five (5) Business Days thereafter. The arbitrator so chosen or appointed, as the case may be, shall be an attorney having reasonable experience in corporate acquisition transactions of the type provided for in this Agreement. The arbitration shall take place in San Francisco, California, in accordance with the AAA rules then in effect; provided, however, that the arbitrator shall review only those sources, items, issues and amounts specifically set forth and objected to in the Dispute Notice and resolve the dispute with respect to each such specific source, item, issue and amount. Judgment upon any insurance recovery award rendered in such arbitration shall be non-binding. Each Party will bear its own costs in respect thereof of any arbitration arising under this Section 10.3(c). Each of the Parties agree to use its commercially reasonable efforts to cooperate with the arbitrator, and such arbitrator shall be required to reach a determination regarding such dispute (via a non-binding order) no later than twenty (20) Business Days after selection of such arbitrator. In the event that after such arbitration the Parties continue to disagree regarding the matters raised in the Dispute Notice, such matters may be resolved pursuant to an Action commenced and no right prosecuted by any Party pursuant to the provisions of subrogation shall accrue hereunder to any insurer)Section 11.8.

Appears in 2 contracts

Samples: Purchase Agreement (QLT Inc/Bc), Purchase Agreement (Allergan Inc)

Notice of Claims. (aEach party indemnified under Section 6(a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunderSection 6(b) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or shall, promptly after receipt of notice of the commencement of any other agreementaction against such indemnified party in respect of which indemnity may be sought, document or instrument executed hereunder or notify the indemnifying party in connection herewith upon which writing of the commencement thereof. The failure of any indemnified party so to notify an indemnifying party of any such claim is based; provided that failure timely to give such notice action shall not relieve the Indemnitor indemnifying party from any liability in respect of its obligations hereunder except such action which it may have to such indemnified party on account of the extent it shall have been indemnity agreement contained in Section 6(a) or Section 6(b) of this Agreement, unless the indemnifying party was prejudiced by such failure. (b) After , and in no event shall relieve the giving indemnifying party from any other liability which it may have to such indemnified party. In case any such action shall be brought against any indemnified party and it shall notify an indemnifying party of any Claim Notice pursuant heretothe commencement thereof, the amount of indemnification to which an Indemnified Party indemnifying party shall be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party, and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under Section 6(a) or Section 6(b) of this Article XI Agreement for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the above, however, if representation of one or more indemnified parties by the counsel retained by the indemnifying party would be inappropriate due to actual conflicting interests between such indemnified parties (the "CONFLICTING INDEMNIFIED PARTIES") and any other party represented by such counsel in such proceeding, then such conflicting indemnified parties shall be determined: have the right to retain one separate counsel, chosen by the holders of a majority of the Subject Stock included in the registration, at the expense of the indemnifying party. No indemnifying party, (i) in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, which consent shall not unreasonably be withheld, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the written agreement between the Indemnified Party and the Indemnitor; claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation, or (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when liable for amounts paid in any settlement if such settlement is effected without the time for appealconsent of the indemnifying party, if any, which consent shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinednot be unreasonably withheld. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Registration Rights Agreement (Tset Inc), Registration Rights Agreement (Kronos Advanced Technologies Inc)

Notice of Claims. (ai) Any Buyer Group Member If an Indemnified Person becomes aware of any act, omission or Seller Group Member seeking state of facts that may give rise to Damages in respect of which a right of indemnification hereunder is provided for under this Article XII, the Indemnified Person must notify the Indemnifying Person, which notice shall specify whether the potential Damages arise as a result of: (or believing in good faith 1) a claim directly by the Indemnified Person against the Indemnifying Person (a “Direct Claim”); or (2) a claim made by a Person against the Indemnified Person (a “Third Party Claim”); as soon as reasonably practicable, provided that it may suffer or incur Losses or Expenses for which it is or may be entitled the failure to indemnification hereunder) (the “Indemnified Party”) shall give provide such notice as soon as reasonably practicable to the party obligated Indemnifying Person shall not relieve the Indemnifying Person of liability except to provide indemnification to the extent that the Indemnifying Person is actually adversely prejudiced by such failure or delay. (ii) The Indemnified Party (the “Indemnitor”) Person must include in a notice describing in reasonable detail given under clause (i) relevant details then known to the facts Indemnified Person of the Direct Claim or Third Party Claim, and the events, matters or circumstances giving rise to the Direct Claim or Third Party Claim and an extract of any claim for indemnification hereunder (a “document that identifies the liability or amount to which the Direct Claim Notice”) as promptly as practicable and shall include in such or Third Party Claim Notice (to the extent then known) the amount relates or the method of computation other evidence of the amount of such claimthe Direct Claim or Third Party Claim, and a reference must after giving such notice keep the Indemnifying Person reasonably informed of all developments in relation to the provision of this Agreement Direct Claim or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failureThird Party Claim. (biii) After If the giving of Indemnifying Person has timely disputed its indemnity obligations for any Claim Notice pursuant heretoDamages with respect to such Direct Claim, the amount Parties shall proceed in good faith to negotiate a resolution of indemnification to which an Indemnified Party such dispute and, if not resolved through negotiations, such dispute shall be entitled under this Article XI shall be determined: (i) resolved by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any litigation in an appropriate court of competent jurisdiction; or (iii) by any other means jurisdiction determined pursuant to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedSection 13.5. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Transaction Agreement (CAESARS ENTERTAINMENT Corp), Transaction Agreement (Caesars Acquisition Co)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member claim by an Indemnified Party seeking indemnification hereunder (pursuant to this Agreement in respect of, arising out of or believing in good faith involving any Losses that it may suffer or incur Losses or Expenses for which it is or may does not involve a Third Party Claim shall be entitled to indemnification hereunder) (the “Indemnified Party”) shall give delivered to the party Party obligated to provide indemnification (the “Indemnifying Party”) to such Indemnified Party by written notice (the IndemnitorClaim Notice”) a notice describing in reasonable detail the facts giving rise to any the claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) After the giving of any Any Claim Notice pursuant hereto, the amount of indemnification to which by an Indemnified Party for indemnification pursuant to Sections 10.1(a)(i) and 10.1(a)(ii) (solely with respect to Section 6.2.4) shall be entitled under this Article XI shall be determined: (i) delivered by the written agreement between the Indemnified Party and to the IndemnitorIndemnifying Party within twelve (12) months of the Closing Date; (ii) provided, however, that any claim by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party for indemnification pursuant to Sections 10.1(a)(i) and the Indemnitor shall agree. The judgment or decree 10.1(b) for any breach of a court Fundamental Representation shall be deemed final when so delivered prior to the time for appealdate that is the third (3rd) anniversary of the Closing Date; provided further, if anyhowever, that no delay or deficiency on the part of any Indemnified Party in so notifying the Indemnifying Party shall have expired and no appeal shall have been taken relieve the Indemnifying Party of any liability under this Agreement except to the extent such delay or when all appeals taken shall have been finally determined. (c) In calculating any Loss deficiency materially prejudices or Expense there shall be deducted any insurance recovery in otherwise materially adversely affects the rights of the Indemnifying Party with respect thereof thereto (and no right of subrogation shall accrue hereunder only to any insurerthe extent so prejudiced).

Appears in 2 contracts

Samples: Share Purchase Agreement (Veoneer, Inc.), Share Purchase Agreement (Veoneer, Inc.)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses If a Claim is asserted against a Person for which it is a Party may have an obligation of indemnity and defense under this Article 8 or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the other provision of this Agreement or any (an “Indemnity Claim”), the indemnified Person shall give the indemnifying Party prompt written notice of the underlying Claim setting forth the particulars associated with the underlying Claim (including a copy of the written underlying Third Party Claim, if any) as then known by the indemnified Person (“Indemnity Claim Notice”). For Indemnity Claims with respect to which the threshold limitations in Section 8.7 apply, an Indemnity Claim shall be deemed to have been made (subject to the other agreementprovisions of Section 8.7) upon the indemnified Person’s providing an initial Indemnity Claim Notice to the indemnifying Party stating that the Claim underlying the Indemnity Claim could reasonably be expected in good faith to exceed the applicable threshold amount. The indemnified Person shall, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it practicable, give an Indemnity Claim Notice within such time as shall have been prejudiced allow the HOUSTON 1139976v.13 indemnifying Party a reasonable period in which to evaluate and timely respond to the underlying Claim; provided, however, that (a) failure to do so shall not affect an indemnified Person’s rights hereunder except for, and only to the extent of, any incremental costs incurred by such failure. the indemnified Person with respect to the Indemnity Claim resulting from the failure to give notice; (b) After the giving foregoing shall not extend the time periods set forth in Section 8.7 (if applicable to the Claim), but if an Indemnity Claim Notice is given to an indemnifying Party within the applicable time period (if any) with respect to such Claim set forth in Section 8.7, such Indemnity Claim Notice shall be effective, subject to the other provisions of Article 8, as to costs and expenses incurred or suffered after the expiration of any such time period, with respect to the matter generally described in such Indemnity Claim Notice; and (c), without extending the time periods set forth in Section 8.7, the indemnified Person shall not be required to provide an Indemnity Claim Notice pursuant hereto, unless and until such Person believes that the amount of indemnification Claim underlying the Indemnity Claim could reasonably be expected in good faith to which an Indemnified Party shall be entitled under this Article XI shall be determined: exceed the applicable threshold (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined) set forth in Section 8.7. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Linn Energy, LLC)

Notice of Claims. (a) Any of Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) seeking indemnification hereunder shall give to the party obligated to provide indemnification to such Indemnified Party (the “IndemnitorIndemnifying Party”) a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided, that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced; provided further that failure timely to give such notice shall not relieve the Indemnitor Indemnifying Party of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article ARTICLE XI shall be determined: determined (i) by the written agreement between the Indemnified Party and the IndemnitorIndemnifying Party; (ii) by a final judgment or decree of any court of competent jurisdictionaward issued by the arbitration tribunal pursuant to Section 13.15; or (iii) by any other means to which the Indemnified Party and the Indemnitor Indemnifying Party shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, Indemnified Party shall have expired the burden of proof in establishing the amount of Losses and no appeal shall have been taken or when all appeals taken shall have been finally determinedExpenses suffered by it. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Asset Purchase Agreement (Stats Chippac Ltd.), Asset Purchase Agreement (Lsi Corp)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member Covered Party seeking indemnification hereunder (shall, within the relevant limitation period provided for in Section 8.1 above, give to the Stockholder Representative or believing in good faith that it may suffer or incur Losses or Expenses for the party which it is or may be entitled obligated pursuant to this Article VIII to provide indemnification hereunder) as set forth herein, as applicable, (the “Indemnified Indemnifying Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any claim claims for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document certificate or instrument executed hereunder pursuant hereto or in connection herewith upon which such claim is based; provided that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced; provided further, that failure timely to give such notice shall not relieve the Indemnitor of its obligations affect such Covered Party’s right to indemnification hereunder except to the extent it the Indemnifying Party shall have been materially prejudiced by such failure. (b) After the giving The Indemnifying Party shall have [***] ([***]) days after receipt of any Claim Notice pursuant hereto, the amount of indemnification hereto to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) agree to the amount or method of determination set forth in the Claim Notice and (A) in the case of a claim made by a Parent Indemnified Party, agree that such amount shall be included in the written agreement between Setoff Amount and, subject to Section 8.5, deducted from the First Milestone Payment Amount in accordance with Section 2.10(e) or (B) in the case of a claim made by a Company Indemnified Party, pay such amount to a Company Indemnified Party and the Indemnitor; in immediately available funds or (ii) by a final judgment to provide such Covered Party with notice that they *** Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. disagree with the amount or decree method of any court of competent jurisdiction; or (iii) by any other means to which determination set forth in the Indemnified Party Claim Notice and thereafter comply with the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery dispute resolution provisions set forth in respect thereof (and no right of subrogation shall accrue hereunder to any insurerSection 2.12(g).

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Santarus Inc), Agreement and Plan of Merger (Santarus Inc)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member party (the "Indemnified Party") seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give promptly to the party obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a written notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any the claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that . The failure timely of any Indemnified Party to give such notice the Claim Notice promptly as required by this Section 10.3 shall not relieve the Indemnitor of its obligations hereunder affect such Indemnified Party's rights under this ARTICLE 10 except to the extent it shall have been prejudiced by such failurefailure is actually prejudicial to the rights and obligations of the Indemnitor. (b) In calculating any Loss, there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer). Any indemnity payment hereunder with respect to any Loss shall be calculated on an "After-Tax Basis", which shall mean an amount which is sufficient to compensate the Indemnified Party for the event giving rise to such Loss (the "Indemnified Event"), determined after taking into account (1) all increases in federal, state, local or other taxes (including estimated taxes) payable by the Indemnified Party as a result of the receipt of the indemnity payment (as a result of the indemnity payment being included in income, resulting in a reduction of tax basis, or otherwise); provided, however, that the Buyer and the Seller agree to report each payment made in respect of a Loss as an adjustment to the Purchase Price for federal income tax purposes, (2) all increases in federal, state, local and other taxes (including estimated taxes) payable by the Indemnified Party for all affected taxable years as a result of the Indemnified Event, and (3) all reductions in federal, state, local and foreign taxes (including estimated taxes) payable by the Indemnified Party as a result of the Indemnified Event. All calculations shall be made using reasonable assumptions agreed upon by the Buyer and the Seller and, in the case of any present value calculations, shall be made using the applicable federal rate in effect at the time of the Indemnified Event (based on the Federal mid-term rate) using semi-annual compounding plus two percentage points. (c) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI ARTICLE 10 shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Purchase and Sale Agreement (Nabi /De/), Agreement for Purchase and Sale of Assets (Nabi Biopharmaceuticals)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement, any Ancillary Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided provided, that a Claim Notice with respect to any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly, and in no event later than fifteen (15) Business Days after receipt by such Indemnified Party of written notice of such third Person claims. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint within five (5) Business Days after receipt thereof and shall deliver to the Indemnitor within seven (7) Business Days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to such third Person claim. Notwithstanding the foregoing provisions of this Section 10.3, any failure timely to give such notice shall or to make a delivery required pursuant to this Section 10.3, (i) will not be deemed a waiver of any rights of an Indemnified Party, except to the extent that the rights of the Indemnitor are prejudiced thereby and (ii) will not relieve the Indemnitor of its obligations hereunder under this Article X after such notice is given or such delivery made, except to the extent it shall have been that the rights of the Indemnitor are prejudiced by such failurethereby. (b) In calculating any Loss there shall be deducted any insurance net (after deducting the present value of premium cost) recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer). (c) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI X shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a settlement approved by a court of competent jurisdiction; (iii) by a final judgment or decree of any a court of competent jurisdiction; or (iiiiv) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Purchase Agreement (Calais Resources Inc), Purchase Agreement (Apollo Gold Corp)

Notice of Claims. (aEach party indemnified under Section 4(a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunderSection 4(b) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or shall, promptly after receipt of notice of the commencement of any other agreementaction against such indemnified party in respect of which indemnity may be sought, document or instrument executed hereunder or notify the indemnifying party in connection herewith upon which writing of the commencement thereof, enclosing a copy of all papers served on such claim is based; provided that failure timely indemnified party. The omission of any indemnified party so to give notify an indemnifying party of any such notice action shall not relieve the Indemnitor indemnifying party from any liability in respect of its obligations hereunder except such action which it may have to such indemnified party on account of the indemnity agreement contained in Section 4(a) or Section 4(b) of this Agreement, unless the indemnifying party was prejudiced by such omission, and in no event shall relieve the indemnifying party from any other liability which it may have to such indemnified party. In case any such action shall be brought against any indemnified party and it shall notify an indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided that if any indemnified party or parties reasonably determine that there may be legal defenses available to such indemnified party that are different from or in addition to those available to such indemnifying party or that representation of such indemnifying party and any indemnified party by the same counsel would present a conflict of interest, then such indemnifying party shall have been prejudiced not be entitled to assume such defense. If an indemnifying party assumes the defense of an action in accordance with and as permitted by the provisions of this paragraph, such indemnifying party shall not be liable to such indemnified party under Section 4(a) or Section 4(b) of this Agreement for any legal or other expenses subsequently incurred by such failureindemnified party in connection with the defense thereof other than reasonable costs of investigation. In no event shall the indemnifying party be liable for the fees and expenses of more than one counsel (in addition to local counsel) separate from its own counsel for all indemnified parties in connection with any one action of separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Registration Rights Agreement (Fisbeck John F), Registration Rights Agreement (Corecomm LTD /De/)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member A party (the "Indemnified Party") seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or 9 instrument executed hereunder or in connection herewith upon which such claim is based; provided, that a Claim Notice in respect of any action at law or suit in equity by or against a third person as to which indemnification will be sought shall be given promptly after the action or suit is commenced; provided further, that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) In calculating any Loss there shall be deducted (i) any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer) and (ii) the amount of any tax benefit to the Indemnified Party with respect to such Loss or Expense (after giving effect to the tax effect of receipt of the indemnification payments). (c) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI VII shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; , or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have the burden of proof in establishing the amount of Loss suffered by it. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Asset Purchase Agreement (Bearcom Group Inc), Asset Purchase Agreement (Wireless International Inc)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) The Indemnified Parties shall promptly give the Company notice (the "Indemnification Notice") of any matter which the Indemnified Party”) shall Parties have determined has given or could give rise to a right of indemnification under this agreement, provided that a failure on the party obligated to provide indemnification to such part of an Indemnified Party (to notify the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall Company will not relieve the Indemnitor Company from any liability that the Company may have on account of its obligations hereunder this indemnity or otherwise, except to the extent it that the Company shall have been materially prejudiced by such failure. (b) After . If, promptly after its receipt of the giving of any Claim Notice pursuant heretoIndemnification Notice, the amount Company acknowledges its obligation to indemnify the Indemnified Parties hereunder against any losses that may result from such claim, then the Company shall be entitled to assume and control the defense of indemnification such claim at its expense and through counsel of its choice unless such counsel is reasonably unsatisfactory to which an Agent. Any Indemnified Party shall be entitled under this Article XI have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be determined: at the expense of such Indemnified Party unless (i) by the written agreement between Company shall have failed promptly to assume the defense thereof and employ counsel, or (ii) the named parties to such action (including impleaded parties) include such Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Company and such Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken advised by counsel that there may be one or when all appeals taken more legal defenses available to it that are different from or in addition to those available to the Company; provided that the Company shall have been finally determined. (c) In calculating not in any Loss or Expense there shall event be deducted responsible hereunder for the fees and expenses of more than one firm of separate counsel in connection with any insurance recovery action in respect thereof (and no right of subrogation shall accrue hereunder the same jurisdiction, in addition to any insurer).local counsel. In the event that the Company exercises the right to undertake any such defense against any such claim, the Indemnified Parties shall cooperate with the Company in such defense and make available to the Company all witnesses, pertinent records, materials and information in the Indemnified Parties possession or under the Indemnified Parties' control relating thereto as is reasonably required by the Company

Appears in 2 contracts

Samples: Series 1 Bridge Note Purchase and Security Agreement (Cumetrix Data Systems Corp), Placement Agent Agreement (Providential Holdings Inc)

Notice of Claims. (a) Any A Buyer Group Member Indemnified Person or Seller Group Member seeking Indemnified Person claiming indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the a Indemnified Claiming Party”) shall give to the party obligated Seller for claims under Section 10.1 or to provide indemnification to such Indemnified Party the Buyer for claims under Section 10.2 (as applicable, the “IndemnitorResponding Party”) a prompt written notice describing in reasonable detail (such notice, the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) of any good faith claim for indemnification (including as promptly as practicable and shall include a result of a Third Party Claim, a “Claim”), but in any event (i) prior to the expiration of the applicable time period for such Claim as provided in Section 10.4(a) and (ii) if such Claim relates to the assertion against the Claiming Party of any claim or dispute by a third party (a “Third Party Claim”), promptly after the assertion in writing by or on behalf of such third party of such Third Party Claim. Notwithstanding the foregoing, no defect or delay in the information provided in the Claim Notice in accordance with the terms hereof (other than the failure to give notice prior to the expiration of the applicable time period for such Claim, as specified in Section 10.4(a)) shall affect a Claiming Party’s rights hereunder unless (and then only to the extent that) the Responding Party is materially prejudiced thereby. The Claim Notice shall describe the nature of the Claim, the amount of Damages sought thereunder if then known) , provision or provisions of this Agreement on which the amount or Claim is based, and the method Claiming Party shall otherwise make reasonably available to the Responding Party any other relevant information which is material to the Claim and which is in the possession of computation the Claiming Party. Unless the Claim described in the Claim Notice is contested by the Responding Party by written notice to the Claiming Party of the amount of such claimthe Claim that is contested, and a reference to given within ten (10) days of the provision receipt of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) After the giving of any Claim Notice pursuant hereto(the “Dispute Notice”), the Claiming Party may recover such undisputed amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between Claim described in the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appealClaim Notice, if any, from the Responding Party, subject to the terms and limitations of this Article X. In the event the Responding Party timely delivers a Dispute Notice, (A) the Claiming Party shall have expired ten (10) days to respond thereto in a written statement and (B) the Claiming Party and the Responding Party shall attempt in good faith for ten (10) days after receipt the Responding Party’s receipt of a written response to resolve the objections set forth therein. If no appeal shall have been taken or when settlement can be reached between the Claiming Party and the Responding Party with respect to a Claim after good faith negotiation during the ten (10)-day period after the Claiming Party’s receipt of the Dispute Notice, the Parties will no longer be bound by the dispute resolution procedures in this Section 10.3(a) and either Party may commence an Action to resolve such dispute. The Parties agree that all appeals taken shall have been finally determineddiscussions, negotiations and other information exchanged between the Parties during the foregoing dispute resolution proceedings will be without prejudice to the legal position of a Party in any subsequent Action. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Asset Purchase Agreement (MACOM Technology Solutions Holdings, Inc.), Asset Purchase Agreement (Wolfspeed, Inc.)

Notice of Claims. (a) Any Buyer Group Member If Acquiror believes that it has suffered or Seller Group Member seeking incurred any Loss and Expense, it shall notify the Agent promptly in writing, and in any event within the applicable time period specified in Section 8.1, describing such Loss and Expense, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such Loss and Expense shall have occurred. If any Legal Action is instituted by a third party with respect to which Acquiror intends to claim any liability or expense as Loss and Expense under this Article, Acquiror shall promptly notify the Agent of such Legal Action, but the failure to so notify the Agent shall not affect Acquiror's ability to recover its Losses and Expenses from the Escrow Indemnity Funds under this Article, except to the extent such failure to notify prejudices the Agent's ability to defend against such Claim. With respect to Losses and Expenses for which recovery could be made under any insurance policies held prior to the Closing by the Company or any Company Subsidiary or pursuant to indemnification hereunder (obligations of a third party in favor of the Company or believing any Company Subsidiary under any Acquisition Agreements, Acquiror undertakes to use commercially reasonable efforts to pursue in good faith recovery under such insurance policies or from such third-party indemnitors prior to Acquiror's recovery from the Escrow Indemnity Funds in respect of a Claim for indemnification with respect to such matters under this Agreement; provided, however, that it may suffer or incur Losses or Expenses for which it is or may Acquiror shall be entitled to indemnification hereunder) (hereunder for any costs, fees and expenses incurred by Acquiror in pursuing recovery under such insurance policies or from such third-party indemnitors; and provided, further, that any representation, warranty, covenant or agreement which is the “Indemnified Party”) shall give subject of a claim for insurance or for third-party indemnification which is asserted prior to the party obligated expiration of the Escrow Indemnity Period shall survive (together with Acquiror's right to provide indemnification to such Indemnified Party (in the “Indemnitor”immediately preceding proviso) for purposes of a notice describing in reasonable detail Claim hereunder with respect thereto until the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (final resolution thereof. Acquiror agrees that, subject to the extent then known) provisos in the amount immediately preceding sentence, amounts actually received by Acquiror under the insurance policies or from the method of computation of third-party indemnitors described in the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice preceding sentence shall not relieve the Indemnitor of its obligations hereunder except constitute Losses and Expenses for which Acquiror is entitled to the extent it shall have been prejudiced by such failureindemnification hereunder. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Merger Agreement (Dauten Kent P), Merger Agreement (Iron Mountain Inc /De)

Notice of Claims. In the event that a claim is made pursuant to Section 8.2.1 and 8.2.2 above against any party which seeks indemnification hereunder (the "Indemnitee"), the Indemnitee agrees to promptly notify the other party (the "Indemnitor") of such claim or action. In the case of any claim by a third Person against the Indemnitee which seeks (and continues to seek) solely monetary damages for which the Indemnitor has expressly agreed in a written notice delivered to the Indemnitee that, as between the Indemnitor and the Indemnitee, the Indemnitor shall be solely obligated to satisfy and discharge the third party claim, the Indemnitor may, at its option, elect to assume control of the defense of such claim or action; provided, however, that (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may the Indemnitee shall be entitled to indemnification hereunder) participate therein (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor through counsel of its obligations hereunder except to own choosing) at the extent it shall have been prejudiced by such failure. Indemnitee's sole cost and expense, (b) After the giving Indemnitor may maintain control of any Claim Notice pursuant heretothe defense only for so long as the above conditions on assumption of defense continue to be satisfied in all respects, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: and (ic) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agreenot settle or compromise any such claim or action without the prior written consent of the Indemnitee, unless such settlement or compromise includes a general release of the Indemnitee and all of the other PNU Indemnities or the Company Indemnities, as the case may be, from any and all liability with respect thereto and does not impose any obligations or restrictions on the Indemnitee and such other related parties." 13. The judgment or decree Section 13.3 of the Original Agreement is hereby amended to delete the words after "not less than ninety (90) days' prior written notice to the other party", and replace such words with a court period [.]. Except as specifically set forth above by this Amendment, the Original Agreement shall be deemed final when the time for appeal, if any, shall have expired remain in full force and no appeal shall have been taken or when effect in all appeals taken shall have been finally determinedrespects. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Collaboration and License Agreement (Esperion Therapeutics Inc/Mi), Collaboration and License Agreement (Pfizer Inc)

Notice of Claims. If either a Buyer Indemnified Party, on the one hand, or a Seller Indemnified Party, on the other hand (a) Any such Buyer Group Member or Indemnified Party on the one hand and such Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled Indemnified Party on the other hand being hereinafter referred to indemnification hereunder) (the as an “Indemnified Party”) shall give to ), has suffered or incurred any Losses for which indemnification may be sought under this ‎Article 8, the party obligated to provide indemnification to such Indemnified Party shall so notify the other party from whom indemnification is sought under this ‎Article 8 (the “IndemnitorIndemnifying Party”) a notice promptly in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss, the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of the amount of such claimLoss, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon respect of which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it Loss shall have been prejudiced occurred. If any claim, action, suit or proceeding is asserted or instituted by such failure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification or against a third party with respect to which an Indemnified Party shall be entitled intends to claim any Loss under this Article XI shall be determined: (i) by the written agreement between the ‎Article 8, such Indemnified Party shall promptly notify the Indemnifying Party of such claim, action, suit or proceeding and tender to the Indemnitor; (ii) Indemnifying Party the defense of such claim, action, suit or proceeding. A failure by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the an Indemnified Party to give notice and to tender the Indemnitor defense of such claim, action, suit or proceeding in a timely manner pursuant to this ‎Section 8.2 shall agree. The judgment or decree not limit the obligation of a court shall be deemed final when the time for appealIndemnifying Party under this ‎Article 8, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedexcept to the extent such Indemnifying Party is actually prejudiced thereby. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Royalty Purchase Agreement (LadRx Corp), Royalty Purchase Agreement (Ultragenyx Pharmaceutical Inc.)

Notice of Claims. If, at or following the Effective Time, an Indemnitee shall receive notice or otherwise learn of the assertion by a Person (aincluding any Governmental Authority) Any Buyer who is not a member of the Parent Group Member or Seller the SpinCo Group Member seeking of any claim or of the commencement by any such Person of any Action (collectively, a “Third-Party Claim”) with respect to which an Indemnitee may seek indemnification hereunder or under any Ancillary Agreement, such Indemnitee shall give such Indemnifying Party written notice thereof as soon as practicable, but in any event within fourteen (14) days (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereundersooner if the nature of the Third-Party Claim so requires) (after becoming aware of such Third-Party Claim. Any such notice shall describe the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Third-Party (the “Indemnitor”) a notice describing Claim in reasonable detail detail, including the facts and circumstances giving rise to any such claim for indemnification hereunder indemnification, and include copies of all notices and documents (a “Claim Notice”including court papers) as promptly as practicable and shall include in such Claim Notice (received by the Indemnitee relating to the extent then knownThird-Party Claim. Notwithstanding the foregoing, the failure of an Indemnitee to provide notice in accordance with this Section 4.5(a) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor an Indemnifying Party of its indemnification obligations hereunder under this Agreement, except to the extent it shall have been prejudiced by such failure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Indemnifying Party and is actually prejudiced by the Indemnitor Indemnitee’s failure to provide notice in accordance with this Section 4.5(a). Thereafter, the Indemnitee shall agree. The judgment or decree of a court shall be deemed final when deliver to the time for appealIndemnifying Party, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof promptly (and no right in any event within ten (10) Business Days) after the Indemnitee’s receipt thereof, copies of subrogation all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim; provided, however, that the failure to forward such notices and documents shall accrue hereunder not relieve an Indemnifying Party of its indemnification obligations under this Agreement, except to any insurer)the extent to which the Indemnifying Party is actually prejudiced by the Indemnitee’s failure.

Appears in 2 contracts

Samples: Separation and Distribution Agreement (Bluerock Homes Trust, Inc.), Separation and Distribution Agreement (Bluerock Homes Trust, Inc.)

Notice of Claims. (aEach party indemnified under Section 5(a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunderSection 5(b) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or shall, promptly after receipt of notice of the commencement of any other agreementaction against such indemnified party in respect of which indemnity may be sought, document or instrument executed hereunder or notify the indemnifying party in connection herewith upon which writing of the commencement thereof, enclosing a copy of all papers served on such claim is based; provided that failure timely indemnified party. The omission of any indemnified party so to give notify an indemnifying party of any such notice action shall not relieve the Indemnitor indemnifying party from any liability in respect of its obligations hereunder except such action which it may have to such indemnified party on account of the indemnity agreement contained in Section 5(a) or Section 5(b) of this Agreement, unless the indemnifying party was prejudiced by such omission, and in no event shall relieve the indemnifying party from any other liability which it may have to such indemnified party. In case any such action shall be brought against any indemnified party and it shall notify an indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided that if any indemnified party or parties reasonably determine that there may be legal defenses available to such indemnified party that are different from or in addition to those available to such indemnifying party or that representation of such indemnifying party and any indemnified party by the same counsel would present a conflict of interest, then such indemnifying party shall have been prejudiced not be entitled to assume such defense. If an indemnifying party assumes the defense of an action in accordance with and as permitted by the provisions of this paragraph, such indemnifying party shall not be liable to such indemnified party under Section 5(a) or Section 5(b) of this Agreement for any legal or other expenses subsequently incurred by such failureindemnified party in connection with the defense thereof other than reasonable costs of investigation. In no event shall the indemnifying party be liable for the fees and expenses of more than one counsel (in addition to local counsel) separate from its own counsel for all indemnified parties in connection with any one action of separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Registration Rights Agreement (Emcore Corp), Registration Rights Agreement (Emcore Corp)

Notice of Claims. If either a Payer Indemnified Party, on the one hand, or a Company Indemnified Party, on the other hand (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled such Payer Indemnified Party on the one hand and such Company Indemnified Party on the other hand being hereinafter referred to indemnification hereunder) (the as an “Indemnified Party”) shall give to ), has suffered or incurred any Losses for which indemnification may be sought under this ‎ARTICLE 7, the party obligated to provide indemnification to such Indemnified Party shall so notify the other party from whom indemnification is sought under this ‎ARTICLE 7 (the “IndemnitorIndemnifying Party”) a notice promptly in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss, the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of the amount of such claimLoss, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon respect of which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it Loss shall have been prejudiced occurred. If any claim, action, suit or proceeding is asserted or instituted by such failure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification or against a Third Party with respect to which an Indemnified Party shall be entitled intends to claim any Loss under this Article XI shall be determined: (i) by the written agreement between the ‎ARTICLE 7, such Indemnified Party shall promptly notify the Indemnifying Party of such claim, action, suit or proceeding and tender to the Indemnitor; (ii) Indemnifying Party the defense of such claim, action, suit or proceeding. A failure by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the an Indemnified Party to give notice and to tender the Indemnitor defense of such claim, action, suit or proceeding in a timely manner pursuant to this ‎Section 7.2 shall agree. The judgment or decree not limit the obligation of a court shall be deemed final when the time for appealIndemnifying Party under this ‎ARTICLE 7, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedexcept to the extent such Indemnifying Party is actually prejudiced thereby. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Pre Paid Forward Contract (UroGen Pharma Ltd.), Pre Paid Forward Contract (UroGen Pharma Ltd.)

Notice of Claims. (a) Any Except with respect to Tax Claims, which shall be governed exclusively by Section 6.10, any Buyer Group Member Indemnified Party or Seller Group Member Indemnified Party seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall shall, within the relevant limitation period provided for in Section 9.1 above, give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any claim claims for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document certificate or instrument executed hereunder pursuant hereto or in connection herewith upon which such claim is based; provided provided, that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced and shall be subject to Section 9.6 below; provided, further, that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder hereunder, except to the extent it shall have been prejudiced by such failure. (b) After An Indemnitor shall have 30 days after the giving of any Claim Notice pursuant hereto, hereto to (i) agree to the amount or method of indemnification determination set forth in the Claim Notice and to which an pay such amount to such Indemnified Party in immediately available funds or (ii) provide such Indemnified Party with notice that it disagrees with the claim or the amount or method of determination set forth in the Claim Notice (the “Dispute Notice”). Within 15 days after the giving of the Dispute Notice, a representative of the Indemnitor and the Indemnified Party shall be entitled under this Article XI negotiate in a bona fide attempt to resolve the matter. In the event that the controversy is not resolved within 30 days of the giving of the Dispute Notice, the parties shall be determined: proceed to binding arbitration pursuant to the following procedures: (i) Any party may send another party written notice identifying the matter in dispute and invoking the procedures of this Section 9.5. Within 14 days, each party involved in the dispute shall meet at a mutually agreed location in New York, New York, for the purpose of determining whether they can resolve the dispute themselves by written agreement, and, if not, whether they can agree upon a third-party arbitrator to whom to submit the written agreement between the Indemnified Party matter in dispute for final and the Indemnitor; binding arbitration. (ii) If such parties fail to resolve the dispute by written agreement or agree on the arbitrator within said 14-day period, any such party may make written application to the Judicial Arbitration & Mediation Services, Inc. (“J.A.M.S.”) for the appointment of a final judgment or decree panel of any court three arbitrators (collectively, the “Arbitrators”) to resolve the dispute by arbitration. At the request of competent jurisdictionJ.A.M.S., the parties involved in the dispute shall meet with J.A.M.S. at its offices within ten days of such request to discuss the dispute and the qualifications and experience which each party respectively believes the Arbitrators should have; or provided, however, that the selection of the Arbitrators shall be the exclusive decision of J.A.M.S. and shall be made within 30 days of the written application to J.A.M.S. (iii) Within 120 days of the selection of the Arbitrators, the parties involved in the dispute shall meet in New York, New York, with such Arbitrators at a place and time designated by any other means such Arbitrators after consultation with such parties and present their respective positions on the dispute. The arbitration proceeding shall be held in accordance with the rules for commercial arbitration of J.A.M.S. in effect on the date of the initial request for appointment of the Arbitrators (as such rules are modified by the terms of this Agreement or may be further modified by mutual agreement of the parties). Each party shall have no longer than five days to which present its position, the Indemnified Party entire proceedings before the Arbitrators shall be no more than ten consecutive days, and the Indemnitor decision of the Arbitrators shall agreebe made in writing no more than 30 days following the end of the proceeding. Such an award shall be a final and binding determination of the dispute and shall be fully enforceable as an arbitration decision in any court having jurisdiction and venue over such parties. The judgment or decree of a court prevailing party (as determined by the Arbitrators) shall in addition be deemed final when awarded by the time for appeal, if any, Arbitrators such party’s own attorneys’ fees and expenses in connection with such proceeding. The non-prevailing party (as determined by the Arbitrators) shall have expired pay the Arbitrators’ fees and no appeal shall have been taken or when all appeals taken shall have been finally determinedexpenses. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Membership Interest Purchase Agreement (Hawkeye Holdings, Inc.), Membership Interest Purchase Agreement (Hawkeye Holdings, Inc.)

Notice of Claims. (a) Any Buyer Group Member If, at any time on or Seller Group Member seeking prior to the Claims Deadline, a party entitiled to indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the an “Indemnified Party”) shall give to the party obligated to provide assert a claim for indemnification to under this Agreement, such Indemnified Party shall submit to to the indemifying party (the “IndemnitorIndemnifying Party”) a notice describing written claim in good faith signed by an authorized officer of the Company Indemnified Party, as applicable, stating (i) that the Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation estimate of the amount of any such claimDamages; (ii) in reasonable detail, the facts alleged as the basis for such claim and a reference to the provision section or sections of this Agreement alleged as the basis or any other agreementbases for the claim; and (iii) if the Damages have actually been incurred, document or instrument executed hereunder or in connection herewith upon which the amount of such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failureDamages. (b) After In the giving of event that any Claim Notice pursuant heretoaction, suit or proceeding is brought against any Indemnified Party with respect to which an Indemnifying Party may have liability under this Article VIII, the amount Indemnifying Party shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of indemnification to which the Indemnified Party; provided, however, that an Indemnified Party shall be entitled under this Article XI shall be determined: (i) have the right to retain its own counsel, with fees and expenses paid by the written agreement between Indemnifying Party, if representation of the Indemnified Party and by counsel retained by the Indemnitor; (ii) by a final judgment Indemnifying Party would be inappropriate because of actual or decree of any court of competent jurisdiction; or (iii) by any other means to which potential differing interests between the Indemnified Idemnifying Party and the Indemnitor shall agreeIndemnified Party. In connection with any action, suit or proceeding subject to Article VIII, each Indemnifying Party and each Indemnified Party agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, suit or proceeding. The judgment Indemnifying Party shall not, without the prior written consent of the applicable Indemnified Party, which consent shall not be unreasonably withheld or decree delayed, settle or compromise any claim or demand if such settlement or compromise does not include an irrevocable and unconditional release of a court shall be deemed final when the time such Indemnified Party for appeal, if any, shall have expired and no appeal shall have been taken any liability arising out of such claim or when all appeals taken shall have been finally determineddemand. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Merger Agreement (interCLICK, Inc.), Merger Agreement (Heavy Metal, Inc.)

Notice of Claims. If either a Buyer Indemnified Party, on the one hand, or a Seller Indemnified Party, on the other hand (a) Any such Buyer Group Member or Indemnified Party on the one hand and such Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled Indemnified Party on the other hand being hereinafter referred to indemnification hereunder) (the as an “Indemnified Party”) shall give to ), has suffered or incurred any Losses for which indemnification may be sought under this Article 6, the party obligated to provide indemnification to such Indemnified Party shall so notify the other party from whom indemnification is sought under this Article 6 (the “IndemnitorIndemnifying Party”) a notice promptly in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss, the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of the amount of such claimLoss, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon respect of which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it Loss shall have been prejudiced occurred. If any claim, action, suit or proceeding is asserted or instituted by such failure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification or against Licensee or a Third Party with respect to which an Indemnified Party shall be entitled intends to claim any Loss under this Article XI shall be determined: (i) by the written agreement between the 6, such Indemnified Party shall promptly notify the Indemnifying Party of such claim, action, suit or proceeding and tender to the Indemnitor; (ii) Indemnifying Party the defense of such claim, action, suit or proceeding. A failure by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the an Indemnified Party to give notice and to tender the Indemnitor defense of such claim, action, suit or proceeding in a timely manner pursuant to this Section 6.2 shall agree. The judgment or decree not limit the obligation of a court shall be deemed final when the time for appealIndemnifying Party under this Article 6, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedexcept to the extent such Indemnifying Party is actually prejudiced thereby. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Royalty Purchase Agreement, Royalty Purchase Agreement (Cytokinetics Inc)

Notice of Claims. (a) Any Buyer Group Member The Company shall give prompt written notice (a "Demand Notice") to GMC and RAI of any claim against GMC or Seller Group Member seeking indemnification hereunder (RAI under the Purchase Agreement by the Company, the Subsidiary or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be any other person entitled to indemnification hereunder) or contribution under Section 13 of the Purchase Agreement (the “an "Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to Person"), including, but not limited to, any claim for that (i) any representation or warranty of GMC or RAI made in the Purchase Agreement or any Ancillary Agreement (as such term is defined in the Purchase Agreement) was not true and complete in all respects when made, (ii) GMC or RAI have failed to timely perform any obligation to be performed by any of them under the Purchase Agreement or any Ancillary Agreement or (iii) the Company, the Subsidiary or any Indemnified Person is entitled to indemnification hereunder (a “Claim Notice”) as promptly as practicable and or contribution under Section 13 of the Purchase Agreement. The Demand Notice shall include in such Claim Notice (to a summary description of the extent then known) factual and legal bases for the amount or the method of computation claim and an estimate of the amount of such the claim, . GMC and RAI shall have the right to contest any claim described in a reference Demand Notice by giving written notice (a "Dispute Notice") to the provision Company within ten (10) calendar days of the Demand Notice. In the event GMC or RAI does not give a Dispute Notice within such ten (10) day period, the description of the claim contained in the Demand Notice (including, but not limited to, the factual and legal bases therefor and the estimate of the amount of the claim) shall be deemed conclusively to be true and complete; provided, -------- however, that the Company shall be entitled thereafter to submit additional Demand Notices pursuant to this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except Section 1.4 with respect to the extent it same claims as were described in such initial Demand Notice and GMC and RAI shall have been prejudiced by the right to contest any such failureadditional demand Notice, all as set forth above. (b) After In the giving event GMC or RAI shall timely deliver a Dispute Notice with respect to any claim (other than a claim based upon the demand of any Claim Notice pursuant heretoa person other than an Indemnified Person (a "third party claim")) and such claim shall not have been conclusively resolved on or before July 31, 2001, the amount of indemnification parties shall attempt to which an Indemnified Party resolve the dispute through mediation. In the event such mediation shall be entitled under this Article XI shall be determined: (i) by not resolve the written agreement between claim, either the Indemnified Party and or GMC or RAI may require binding arbitration of the Indemnitor; (ii) by a final judgment or decree claim pursuant to Section 2.13 of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedthis Agreement. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Escrow Agreement (Tarrant Apparel Group), Escrow Agreement (Tarrant Apparel Group)

Notice of Claims. (a) Any Buyer Group Member Indemnified Party or Seller Group Member Indemnified Party seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give promptly to the party Party obligated to provide indemnification to such Indemnified Party under this ARTICLE 11 (Indemnification; Remedies) (the “IndemnitorIndemnifying Party”) a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE DERMAVANT SCIENCES LTD. HAS DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO DERMAVANT SCIENCES LTD. IF PUBLICLY DISCLOSED. the claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided, that a Claim Notice in respect of any Third Party Claim shall be given promptly after the action or suit is commenced; provided further, that failure timely to give such any delay in complying with prompt notice shall not relieve requirements of this Section 11.5 (Notice of Claims) will only limit the Indemnitor of its obligations hereunder except Indemnifying Party’s obligation to the extent it shall have been prejudiced of the prejudice caused to the Indemnifying Party by such failuredelay. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Asset Purchase Agreement (Roivant Sciences Ltd.), Asset Purchase Agreement (Dermavant Sciences LTD)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to In the event any Parent Indemnified Party shall seek indemnification hereunder) (, Parent shall, within the “Indemnified Party”) shall relevant limitation period provided for in Section 11.1, give to the party obligated to provide indemnification to such Indemnified Party Securityholders’ Representative a notice (the a IndemnitorClaim Notice”) a notice describing in reasonable detail the facts giving rise to any such claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice whether such claim relates to a claim by a Third Party against such Parent Indemnified Party (a “Third Party Claim”) (in which case, such Claim Notice shall also include copies of all material written documents pursuant to which such Third Party Claim has been made) and the extent then known) the estimated amount or the method of computation of the amount of such claim, and a reference to the relevant provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which giving rise to such claim is basedfor indemnification; provided that a Claim Notice in respect of any Action by or against a Third Party as to which indemnification shall be sought shall be given promptly (and in any event within thirty (30) days) after the Parent Indemnified Party becomes aware of the material facts constituting the basis for such Action; and provided further, that failure timely by Parent to give any such notice shall not relieve the Indemnitor of its obligations affect such Parent Indemnified Party’s right to indemnification hereunder except to the extent it shall the Securityholders’ Representative or the Securityholders have been materially prejudiced by such failure. . For the avoidance of doubt, any notice to be given to (bor delivered by) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an a Parent Indemnified Party shall be entitled under this Article XI shall be determined: given by (ior delivered to) by the written agreement between the Parent on behalf and in lieu of such Parent Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedParty. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Organon & Co.), Agreement and Plan of Merger (Roivant Sciences Ltd.)

Notice of Claims. (aEach party indemnified under Section 4(a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunderSection 4(b) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement shall, promptly after receipt of notice of the commencement of any action, suit, claim, proceeding or investigation (collectively, a "Claim") against such indemnified party in respect of which indemnity may be sought, notify the indemnifying party in writing of the commencement thereof, enclosing a copy of all papers served on such indemnified party. The failure of any other agreement, document or instrument executed hereunder or in connection herewith upon which indemnified party so to notify promptly an indemnifying party of any such claim is based; provided that failure timely to give such notice Claim shall not relieve the Indemnitor indemnifying party from any liability in respect of its obligations hereunder except such action which it may have to such indemnified party on account of the extent it shall have been indemnity agreement contained in Section 4(a) or Section 4(b) of this Agreement, unless the indemnifying party was prejudiced by such failure. (b) After , and in no event shall relieve the giving indemnifying party from any other liability which it may have to such indemnified party. In case any such Claim shall be brought against any indemnified party and it shall notify promptly an indemnifying party of any Claim Notice pursuant heretothe commencement thereof, the amount of indemnification to which an Indemnified Party indemnifying party shall be entitled under this Article XI shall to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party; provided that if any indemnified party or parties reasonably determine(s) after consultation with, and based on the advice of, outside, qualified legal counsel that there may be determined: (i) legal defenses available to such indemnified party that are different from or in addition to those available to such indemnifying party or that representation of such indemnifying party and any indemnified party by the written agreement between same counsel would present a conflict of interest under applicable rules of attorney professional conduct, then such indemnifying party shall not be entitled to assume such defense. If an indemnifying party assumes the Indemnified Party defense of an action in accordance with and as permitted by the Indemnitor; provisions of this paragraph, such indemnifying party shall not be liable to such indemnified party under Section 4(a) or Section 4(b) of this Agreement for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. In no event shall the indemnifying party be liable for the fees and expenses of more than one counsel (iiin addition to local counsel) by a final judgment separate from its own counsel for all indemnified parties in connection with any one action or decree separate but similar or related actions in the same jurisdiction arising out of any court of competent jurisdiction; the same general allegations or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedcircumstances. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Registration Rights Agreement (Corecomm LTD /De/), Registration Rights Agreement (Corecomm LTD /De/)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may If any of the Persons to be entitled to indemnification hereunder) indemnified under this Article 9 (the “Indemnified Party”) has suffered or incurred any Loss (other than one resulting from a Third Party Claim), the Indemnified Party shall give to so notify in writing the party obligated to provide from whom indemnification to such Indemnified Party is sought (the “IndemnitorIndemnifying Party”) a notice promptly after obtaining knowledge of such claim, describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss, the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of the amount of such claimLoss, all with reasonable specificity and containing a reference to the provision provisions of this Agreement, any Implementing Agreement or any other agreement, document or instrument executed hereunder or Transition Agreement in connection herewith upon respect of which such claim is based; provided that Loss shall have occurred. A failure timely to give such notice in a timely manner pursuant to this Section 9.3(a) shall not relieve limit the Indemnitor obligation of its obligations hereunder the Indemnifying Party under this Article 9: (i) except to the extent it such Indemnifying Party is prejudiced thereby and (ii) except to the extent expenses are incurred during the period in which notice was not provided. The Indemnified Party shall have been prejudiced reasonably cooperate and assist the Indemnifying Party in determining the validity of any claim of indemnity (including reasonable access to and copies of records and information that are reasonably relevant to such matters and the making available of employees on a mutually convenient basis for providing additional information and explanation of any material relating to such matters). If the Indemnifying Party does not notify the Indemnified Party within sixty (60) calendar days following its receipt of a notice delivered pursuant to this Section 9.3 that the Indemnifying Party disputes its liability to the Indemnified Party under this Article 9, such claim specified by the Indemnified Party in such failurenotice shall be conclusively determined to be a liability of the Indemnifying Party. (b) After the giving of If any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) Proceeding is instituted by the written agreement between the Indemnified Party and the Indemnitor; (ii) by or against a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means third party with respect to which the Indemnified Party intends to claim any Liability or expense as a Loss under this Article 9, the Indemnified Party shall promptly following receipt by such Indemnified Party of notice of the Third Party Claim notify the Indemnifying Party in writing and in reasonable detail of such Proceeding. Thereafter, the Indemnitor Indemnified Party shall agreedeliver to the Indemnifying Party, promptly following the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. The judgment A failure to give notice and to tender the defense of the Proceeding in a timely manner pursuant to this Section 9.3(b) shall not limit the obligation of the Indemnifying Party under this Article 9: (i) except to the extent such Indemnifying Party is prejudiced thereby, and for this purpose, any failure to give notice and to tender the defense that results in the Indemnifying Party not controlling or decree of a court participating in such Proceeding shall be deemed final when to prejudice the time for appealIndemnifying Party, if any(ii) except to the extent expenses are incurred during the period in which notice was not provided, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined(iii) except as provided by Section 9.4 below. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Purchase and Sale Agreement (Nexeo Solutions Finance Corp), Purchase and Sale Agreement (Ashland Inc.)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) If Tribune and the Tribune Subs (the “Indemnified Party”"Tribune Entities") shall give to or Xxxxxxxx and the party obligated to provide indemnification to such Indemnified Party Xxxxxxxx Subs (the “Indemnitor”"Xxxxxxxx Entities") a notice believes that they have suffered or incurred any Loss or incurred any Expense, the Tribune Entities or the Xxxxxxxx Entities shall so notify the other promptly in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss or Expense, the amount or thereof, if known, and the method of computation of the amount of such claimLoss or Expense, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document instrument or instrument executed hereunder or certificate delivered pursuant hereto in connection herewith upon respect of which such Loss or Expense shall have occurred. If any action at law or suit in equity is instituted by or against a third party with respect to which the Tribune Entities or the Xxxxxxxx Entities intend to claim is based; provided that any liability or expense as Loss or Expense under this Article VIII, the Tribune Entities or the Xxxxxxxx Entities, as the case may be, shall promptly notify the indemnifying party of such action or suit. The failure timely of any party to give such any notice required by this Section 8.3 shall not relieve the Indemnitor affect any of its obligations hereunder such party's rights under this Article VIII except to the extent it shall have been prejudiced by such failurefailure is actually prejudicial to the rights or obligations of the other party. (b) After the giving of any Claim Notice pursuant hereto, the The amount of indemnification to which an Indemnified Party indemnified person shall be entitled under this Article XI VIII shall be determined: (i) by the written agreement between the Indemnified Party Tribune and the Indemnitor; Xxxxxxxx, (ii) by a final judgment or decree of any court of competent jurisdiction; jurisdiction or (iii) by any other means to which the Indemnified Party Tribune and the Indemnitor Xxxxxxxx shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The indemnified party shall have the burden of proof in establishing the amount of the Loss and Expense suffered by it. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Asset Exchange Agreement (Meredith Corp), Asset Exchange Agreement (Tribune Co)

Notice of Claims. If either a Buyer Indemnified Party, on the one hand, or a Seller Indemnified Party, on the other hand (a) Any such Buyer Group Member or Indemnified Party on the one hand and such Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled Indemnified Party on the other hand being hereinafter referred to indemnification hereunder) (the as an “Indemnified Party”) shall give to ), has suffered or incurred any Losses for which indemnification may be sought under this ‎ARTICLE 7, the party obligated to provide indemnification to such Indemnified Party shall so notify the other party from whom indemnification is sought under this ‎ARTICLE 7 (the “IndemnitorIndemnifying Party”) a notice promptly in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss, the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of the amount of such claimLoss, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon respect of which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it Loss shall have been prejudiced occurred. If any claim, action, suit or proceeding is asserted or instituted by such failure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification or against a Third Party with respect to which an Indemnified Party shall be entitled intends to claim any Loss under this Article XI shall be determined: (i) by the written agreement between the ‎ARTICLE 7, such Indemnified Party shall promptly notify the Indemnifying Party of such claim, action, suit or proceeding and tender to the Indemnitor; (ii) Indemnifying Party the defense of such claim, action, suit or proceeding. A failure by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the an Indemnified Party to give notice and to tender the Indemnitor defense of such claim, action, suit or proceeding in a timely manner pursuant to this ‎Section 7.2 shall agree. The judgment or decree not limit the obligation of a court shall be deemed final when the time for appealIndemnifying Party under this ‎ARTICLE 7, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedexcept to the extent such Indemnifying Party is actually prejudiced thereby. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Purchase and Sale Agreement (Milestone Pharmaceuticals Inc.), Purchase and Sale Agreement (Avadel Pharmaceuticals PLC)

Notice of Claims. (ai) Any Buyer Group Member If an Indemnified Person becomes aware of any act, omission or Seller Group Member seeking state of facts that may give rise to Damages in respect of which a right of indemnification hereunder is provided for under this Article XI, the Indemnified Person must notify the Indemnifying Person, which notice shall specify whether the potential Damages arise as a result of: (or believing in good faith 1) a claim directly by the Indemnified Person against the Indemnifying Person (a “Direct Claim”); or (2) a claim made by a Person against the Indemnified Person (a “Third Party Claim”); as soon as reasonably practicable, provided that it may suffer or incur Losses or Expenses for which it is or may be entitled the failure to indemnification hereunder) (the “Indemnified Party”) shall give provide such notice as soon as reasonably practicable to the party obligated Indemnifying Person shall not relieve the Indemnifying Person of liability except to provide indemnification to the extent that the Indemnifying Person is materially prejudiced by such failure or delay. (ii) The Indemnified Party (the “Indemnitor”) Person must include in a notice describing in reasonable detail given under clause (i) relevant details then known to the facts Indemnified Person of the Direct Claim or Third Party Claim, and the events, matters or circumstances giving rise to the Direct Claim or Third Party Claim and an extract of any claim for indemnification hereunder (a “document that identifies the liability or amount to which the Direct Claim Notice”) as promptly as practicable and shall include in such or Third Party Claim Notice (to the extent then known) the amount relates or the method of computation other evidence of the amount of such claimthe Direct Claim or Third Party Claim, and a reference must after giving such notice keep the Indemnifying Person reasonably informed of all developments in relation to the provision of this Agreement Direct Claim or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failureThird Party Claim. (biii) After If the giving of Indemnifying Person has timely disputed its indemnity obligations for any Claim Notice pursuant heretoDamages with respect to such Direct Claim, the amount Parties shall proceed in good faith to negotiate a resolution of indemnification to which an Indemnified Party such dispute and, if not resolved through negotiations, such dispute shall be entitled under this Article XI shall be determined: (i) resolved by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any litigation in an appropriate court of competent jurisdiction; or (iii) by any other means jurisdiction determined pursuant to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedSection 11.5. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 2 contracts

Samples: Transaction Agreement (CAESARS ENTERTAINMENT Corp), Transaction Agreement (Caesars Acquisition Co)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be If a Party entitled to indemnification hereunder) be indemnified under the foregoing provisions of this Article 7 (the an “Indemnified Party”) shall wishes to make a Claim for indemnification hereunder against Artemis, on the one hand, or New Gold, on the other hand, (herein called the “Indemnifying Party”), the Indemnified Party will promptly give written notice thereof to the party obligated to provide indemnification to such Indemnifying Party of the Claim (a “Notice of Claim”). Such Notice of Claim will specify whether the Claim originates with the Indemnified Party (the a IndemnitorDirect Claim”) or with a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder third party (a “Claim NoticeThird Party Claim”) as promptly as practicable and shall include in such Claim Notice will specify with reasonable particularity (to the extent then knownthat information is available): (1) the factual basis for the Claim; and (2) the amount or the method of computation of the Claim or, if an amount is not then determinable, an approximate estimate of the potential amount of such claimthe Claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failurean estimate can reasonably be given at that time. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which If an Indemnified Party fails to provide the Indemnifying Party with a Notice of Claim promptly as required by Section 7.4(a), the Indemnifying Party shall be entitled relieved of the obligation to pay damages to the extent it can show that it was prejudiced in its defence of the Claim or in proceeding against a third party who would have been liable to it but for the fact of the delay, but the failure to provide such Notice of Claim promptly shall not otherwise release the Indemnifying Party from its obligations under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined7. (c) In calculating If the date by which a Notice of Claim must be given as set out in Section 8.1 in respect of a breach of representation and warranty has passed without any Loss or Expense there Notice of Claim having been given to the Indemnifying Party, then the related Claim shall be deducted any insurance recovery forever extinguished, notwithstanding that by the date specified in respect thereof (Section 8.1, the Indemnified Party did not know, and no right in the exercise of subrogation shall accrue hereunder to any insurer)reasonable care could not have known, of the existence of the Claim.

Appears in 1 contract

Samples: Asset Purchase Agreement (New Gold Inc. /FI)

Notice of Claims. If a Claim is asserted against a Person for which a Party may have Indemnity Obligations under this Agreement (an “Indemnity Claim”), the indemnified Person shall give the indemnifying Party written notice of the underlying Claim setting forth the particulars associated with the underlying Claim (including a copy of the written underlying Claim, if any) as then known by the indemnified Person (“Indemnity Claim Notice”). For Indemnity Claims with respect to which the Individual Indemnity Threshold in Section 4.4 applies, an Indemnity Claim shall be deemed to have been made (subject to the provisions of Section 4.4) upon the indemnified Person’s providing an initial Indemnity Claim Notice to the indemnifying Party stating that the Claim underlying the Indemnity Claim could reasonably be expected to exceed the Individual Indemnity Threshold. The indemnified Person shall, to the extent practicable, give an Indemnity Claim Notice within such time as will allow the indemnifying Party a reasonable period in which to evaluate and timely respond to the underlying Claim; provided, (a) Any Buyer Group Member or Seller Group Member seeking indemnification failure to do so shall not affect an indemnified Person’s rights hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable except for, and shall include in such Claim Notice (only to the extent then known) that, such failure results in insufficient time being available to permit the amount indemnifying Party to effectively defend against the Claim or otherwise materially prejudices the method indemnifying Party’s ability to defend against the Claim through the forfeiture of computation of the amount of such claim, substantive rights or defenses; and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) After the giving foregoing shall not extend the time period set forth in Section 4.4(a) (if applicable to the Claim), but if an Indemnity Claim Notice is given to an indemnifying Party within the applicable time period (if any) with respect to such Claim set 37 forth in Section 4.4(a), such Indemnity Claim Notice shall be effective, subject to the other limitations in Section 4.4 (if applicable), as to costs and expenses incurred or suffered after the expiration of any such time period, with respect to the matter described in such Indemnity Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedNotice. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Purchase and Sale Agreement

Notice of Claims. (a) Any Buyer Group Member Purchaser Indemnitee or Seller Group Member seeking indemnification hereunder (or believing in good faith Indemnitee claiming that it may suffer has suffered or incur Losses or Expenses incurred any Loss for which it is or may be entitled to indemnification hereunderunder Section 6.07(e), Section 6.13(e) or this ARTICLE VIII (the “Indemnified Party”) shall give prompt written notice to the party obligated to provide Party from whom indemnification to such Indemnified Party is sought (the “IndemnitorIndemnifying Party”) of the matter, action, cause of action, claim, demand, proceeding, fact or other circumstances upon which a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder under Section 6.07(e), Section 6.13(e) or this ARTICLE VIII (each, a “Claim NoticeClaim”) may be based. Such notice shall contain, with respect to each Claim, such facts and information as promptly as practicable and shall include in such Claim Notice (are then reasonably available to the extent then known) Indemnified Party with respect to such Claim, including the amount or the method of computation of the estimated amount of such Losses (if known or reasonably capable of estimation) and the basis for indemnification hereunder. If any Claim is based on any action, claim, and a reference to the provision of this Agreement suit or any other agreement, document proceeding (in equity or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (bat law) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) instituted by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means third party with respect to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating intends to claim any Loss under this ARTICLE VIII (a “Third Party Claim”), the Indemnified Party shall promptly notify (the “Third Party Claim Notice”) the Indemnifying Party of such Third Party Claim and offer to tender to the Indemnifying Party the defense of such Third Party Claim. A failure by the Indemnified Party to give written notice of (or Expense there the contents of such notice) and to offer to tender the defense of any Third Party Claim in a timely manner pursuant to this Section 8.03 shall be deducted any insurance recovery not limit the obligation of the Indemnifying Party under this ARTICLE VIII, except (a) to the extent such Indemnifying Party is actually prejudiced thereby or (b) as provided in respect thereof (and no right of subrogation shall accrue hereunder to any insurer)Section 8.05.

Appears in 1 contract

Samples: Asset Purchase Agreement (Vivus Inc)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member party seeking indemnification hereunder under this Article 10 (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the an “Indemnified Party”) shall give to shall, notify the party obligated from whom indemnification is being sought (an “Indemnifying Party”) in writing within ten (10) days after the receipt of notice of the commencement of any Action against such Indemnified Party in respect of which indemnity may be sought from the Indemnifying Party under this Article 10. The omission of any Indemnified Party to provide indemnification so notify the Indemnifying Party of any such Action shall not relieve the Indemnifying Party from any liability which it may have to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to under this Article 10 or otherwise. In case any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and such Action shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or be brought against any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) After the giving of any Claim Notice pursuant heretoIndemnified Party, the amount of indemnification to which an Indemnified Indemnifying Party shall be entitled under this Article XI to assume the defense thereof at its own expense, with counsel satisfactory to such Indemnified Party in its reasonable judgment; provided, however, that any Indemnified Party may, at its own expense, retain separate counsel to participate in such defense. Notwithstanding the foregoing, in any Action in which both the Indemnifying Party, on the one hand, and an Indemnified Party, on the other hand, are, or are reasonably likely to become, a party, such Indemnified Party shall be determined: (i) by have the written agreement right to employ separate counsel at the Indemnifying Party’s expense and to control its own defense of such Action if, in the reasonable opinion of counsel to such Indemnified Party, a conflict or potential conflict exists between the Indemnifying Party, on the one hand, and such Indemnified Party, on the other hand, that would make such separate representation advisable; provided, however, that the Indemnifying Party shall not be liable for the fees and the Indemnitor; (ii) by a final judgment or decree expenses of any court of competent jurisdiction; or (iii) by any other means more than one counsel to which the all Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedParties. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Subscription Agreement (36Kr Holdings Inc.)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses If a Claim is asserted against a Person for which it is a Party may have an obligation of indemnity and defense under this Article VIII or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the other provision of this Agreement or any (an “Indemnity Claim”), the indemnified Person shall give the indemnifying Party prompt written notice of the underlying Claim setting forth the particulars associated with the underlying Claim (including a copy of the written underlying Third Party Claim, if any) as then known by the indemnified Person (“Indemnity Claim Notice”). For Indemnity Claims with respect to which the threshold limitations in Section 8.7 apply, an Indemnity Claim shall be deemed to have been made (subject to the other agreementprovisions of Section 8.7) upon the indemnified Person’s providing an initial Indemnity Claim Notice to the indemnifying Party stating that the Claim underlying the Indemnity Claim could reasonably be expected in good faith to exceed the applicable threshold amount. The indemnified Person shall, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it practicable, give an Indemnity Claim Notice within such time as shall have been prejudiced allow the indemnifying Party a reasonable period in which to evaluate and timely respond to the underlying Claim; provided, however, that (a) failure to do so shall not affect an indemnified Person’s rights hereunder except for, and only to the extent of, any incremental costs incurred by such failure. the indemnified Person with respect to the Indemnity Claim resulting from the failure to give notice; (b) After the giving foregoing shall not extend the time periods set forth in Section 8.7 (if applicable to the Claim), but if an Indemnity Claim Notice is given to an indemnifying Party within the applicable time period (if any) with respect to such Claim set forth in Section 8.7, such Indemnity Claim Notice shall be effective, subject to the other provisions of Article VIII, as to costs and expenses incurred or suffered after the expiration of any such time period, with respect to the matter generally described in such Indemnity Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense there without extending the time periods set forth in Section 8.7, the indemnified Person shall not be deducted any insurance recovery required to provide an Indemnity Claim Notice unless and until such Person believes that the Claim underlying the Indemnity Claim could reasonably be expected in respect thereof good faith to exceed the applicable threshold (and no right of subrogation shall accrue hereunder to any insurer)if any) set forth in Section 8.7.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Linn Energy, LLC)

Notice of Claims. If either a Buyer Indemnified Party, on the one hand, or a Seller Indemnified Party, on the other hand (a) Any such Buyer Group Member or Indemnified Party on the one hand and such Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled Indemnified Party on the other hand being hereinafter referred to indemnification hereunder) (the as an “Indemnified Party”) shall give to ), has suffered or incurred any Losses for which indemnification may be sought under this Article 7, the party obligated to provide indemnification to such Indemnified Party shall so notify the other party from whom indemnification is sought under this Article 7 (the “IndemnitorIndemnifying Party”) a notice promptly in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss, the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of the amount of such claimLoss, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon respect of which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it Loss shall have been prejudiced occurred. If any claim, action, suit or proceeding is asserted or instituted by such failure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification or against a third party with respect to which an Indemnified Party shall be entitled intends to claim any Loss under this Article XI 7, such Indemnified Party shall be determined: (i) promptly notify the Indemnifying Party of such claim, action, suit or proceeding and tender to the Indemnifying Party the defense of such claim, action, suit or proceeding. A failure by an Indemnified Party to give notice and to tender the written agreement between defense of such claim, action, suit or proceeding in a timely manner pursuant to this Section 7.3 shall not limit the obligation of the Indemnifying Party under this Article 7, except to the extent such Indemnifying Party is actually prejudiced thereby. In the event of a claim by any Indemnified Party that does not involve a third party claim, if the Indemnifying Party disputes its liability with respect to such claim, the Indemnifying Party and the Indemnified Party and the Indemnitor; (ii) by shall proceed in good faith to negotiate a final judgment or decree resolution of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court such dispute and, if not resolved through negotiations, such dispute shall be deemed final when resolved in accordance with the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determineddispute resolution provisions set forth in Section 9.8. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Asset Purchase Agreement (Ligand Pharmaceuticals Inc)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member Each party entitled to indemnification under this Article IX (each, an "Indemnified Party") seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give a notice (a "Claim Notice") to the party obligated to provide from whom indemnification to such Indemnified Party is sought (either the “Indemnitor”Sellers Representatives (in the case of a Purchaser Indemnitee) or Purchaser (in the case of a notice describing Sellers Indemnitee), the "Indemnifying Party"), specifying in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Indemnification Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claimIndemnification Claim, and a reference to the provision of this Agreement or any other agreement, document certificate or instrument executed hereunder pursuant hereto or in connection herewith upon which such claim Indemnification Claim is based; provided provided, that failure timely a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to give such notice which indemnification will be sought shall not relieve be given promptly after the Indemnitor of its obligations hereunder except to Indemnified Party has actual knowledge that the extent it shall have been prejudiced by such failureaction or suit is commenced. (b) After The Indemnifying Party shall have 30 Business Days after the giving receipt of any Claim Notice pursuant hereto, hereto to provide such Indemnified Party with notice that it disagrees with the amount or method of indemnification to which an determination set forth in the Claim Notice (the "Disagreement Notice"). The Indemnified Party shall be entitled under this Article XI provide the Indemnifying Party with such information with respect to such Claim Notice as the Indemnifying Party reasonably requests. If the Indemnifying Party delivers a timely Disagreement Notice, the parties shall be determined: (i) by resolve such conflict in accordance with the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedprocedures set forth in Section 9.05(c). (c) If the Indemnifying Party shall have timely provided a Disagreement Notice, the parties will attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims. If the parties should so agree, a memorandum setting forth such agreement will be prepared and signed by Purchaser and the Sellers Representatives. In calculating any Loss or Expense there the event the parties shall fail to reach an agreement within 30 Business Days after the date on which the Indemnified Party received a Disagreement Notice, the dispute shall be deducted any insurance recovery resolved in respect thereof (and no right accordance with the provisions of subrogation shall accrue hereunder to any insurer)Article XI.

Appears in 1 contract

Samples: Share Purchase Agreement (Comverse Technology Inc/Ny/)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member party (the "Indemnified Party") seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) under this Article X shall give to the party obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder pursuant hereto or in connection herewith upon which such claim is based; provided, that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced; provided further that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) After Subject to Section 10.4, after the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI X shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; or (ii) by an award from an arbitrator pursuant to Section 12.10 hereof or by a final judgment or decree of any court of competent jurisdiction; or (iii) jurisdiction upholding such an award from an arbitrator. Except as provided in the first sentence of Section 12.10, the parties shall proceed in the manner and subject to the limitations in this Article X with respect to all matters covered by any other means to which the Section 10.2 and Section 10.3. The Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired the burden of proof in establishing the amount of Losses and no appeal shall have been taken or when all appeals taken shall have been finally determinedExpenses suffered by it. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Agreement for Purchase and Sale of Licenses (Leap Wireless International Inc)

Notice of Claims. (a) Any Buyer Group Member Indemnified Party or Seller Group Member Indemnified Party (the "Indemnified Party") seeking indemnification hereunder (or believing shall, within the relevant limitation period provided for in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall Section 7.1 above, give to the party obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim claims for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder pursuant hereto or in connection herewith upon which such claim is based; provided, that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced; and provided further, that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it that Indemnitor shall have been prejudiced by such failure. (b) After The Indemnitor shall have thirty (30) days after the giving of any Claim Notice pursuant hereto, hereto to (i) agree to the amount or method of indemnification determination set forth in the Claim Notice and to which an pay such amount to such Indemnified Party in immediately available funds or (ii) to provide such Indemnified Party with notice that it disagrees with the amount or method of determination set forth in the Claim Notice (the "Dispute Notice"). Within thirty (30) days after the giving of the Dispute Notice, a representative of Indemnitor and such Indemnified Party shall be entitled under this Article XI negotiate in a bona fide attempt to resolve the matter. In the event that the controversy is not resolved within sixty (60) days of the giving of the Dispute Notice, the parties shall be determined: (i) proceed to binding arbitration administered by the written agreement between the Indemnified Party American Arbitration Association in accordance with such association's rules and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedprocedures. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Asset Purchase Agreement (Wesley Jessen Visioncare Inc)

Notice of Claims. Any Indemnified Party that proposes to assert a right to be indemnified under this Section 10 shall notify Exelixis or Holdings, as applicable (athe “Indemnifying Party”), promptly after receipt of notice of commencement of any action, suit or proceeding against such Indemnified Party (an “Indemnified Proceeding”) Any Buyer Group Member in respect of which a claim is to be made under this Section 10, or Seller Group Member seeking indemnification hereunder the incurrence or realization of any Loss in respect of which a claim is to be made under this Section 10, of the commencement of such Indemnified Proceeding or of such incurrence or realization, enclosing a copy of all relevant documents, including all papers served and claims made, but the omission to so notify the applicable Indemnifying Party promptly of any such Indemnified Proceeding or incurrence or realization shall not relieve (or believing in good faith x) such Indemnifying Party from any liability that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give to the party obligated to provide indemnification have to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise under this Section 10 or otherwise, except, as to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (Indemnifying Party’s liability under this Section 10, to the extent then known) the amount or the method of computation of the amount of such claimextent, and a reference but only to the provision of this Agreement or any other agreementextent, document or instrument executed hereunder or in connection herewith upon which that such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it Indemnifying Party shall have been prejudiced by such failure. omission, or (by) After the giving of any Claim Notice pursuant hereto, the amount of indemnification other indemnitor from liability that it may have to which an any Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agreeOperative Documents. The judgment or decree of a court shall be deemed final when the time for appeal[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, if anyMARKED BY BRACKETS, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedHAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Purchase Option Agreement (Exelixis Inc)

Notice of Claims. (a1) Any Buyer Group Member or Seller Group Member The Joint Venturer seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”"Indemnitee") shall give to immediately notify the party obligated to provide Joint Venturer from whom indemnification to such Indemnified Party is sought (the "Indemnitor") if it receives a complaint, claim or other notice describing in reasonable detail the facts of any loss, claim, damage or liability giving rise to any a claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (indemnification, but failure to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give provide such notice shall not relieve the Indemnitor of its obligations hereunder except from any duty to indemnify unless the extent it shall have been Indemnitor is materially prejudiced by such failurefailure and had no actual knowledge of such complaint, claim or other notice. (2) With respect to any claim made or threatened against the Indemnitee for which the Indemnitee is or may be entitled to indemnification, the Indemnitee shall: (a) Give written notice to the Indemnitor of such claim as soon as practicable after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount of the claim); (b) After Provide the giving of any Claim Notice pursuant heretoIndemnitor such information and cooperation with respect to such claim as the Indemnitor may reasonably require, including, without limitation, making appropriate personnel available to the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and Indemnitor at such reasonable times as the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined.request; (c) Cooperate and take all such steps as the Indemnitor may reasonably request to preserve and protect any defense of such claim; (3) In calculating the event suit is brought with respect to such claim, upon reasonable prior notice, the Indemnitee shall afford to the Indemnitor the right, which the Indemnitor may exercise in its sole discretion and at its expense, to participate and control in the investigation, defense, and settlement of such claim; In such case Indemnitor shall not release or settle such claim or make any Loss admission with respect thereto (other than routine or Expense there shall be deducted any insurance recovery in respect thereof (and no right incontestable admission or factual admissions the failure to make which would expose the Indemnitee to unindemnified liability) without the prior written consent of subrogation shall accrue hereunder to any insurer)the Indemnitee.

Appears in 1 contract

Samples: Joint Venture Agreement (Bet Holdings Inc)

Notice of Claims. (a) Any Buyer Group Member Each party indemnified under Section 4.4.1 or Seller Group Member seeking indemnification hereunder (Section 4.4.2 above shall, promptly after receipt of notice of the commencement of any claim or believing action against such indemnified party in good faith that it may suffer or incur Losses or Expenses for respect of which it is or indemnity may be entitled to indemnification hereunder) (sought, notify the “Indemnified Party”) shall give to the indemnifying party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation writing of the amount commencement thereof. The omission of any indemnified party so to notify an indemnifying party of any such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice action shall not relieve the Indemnitor indemnifying party from any liability in respect of its obligations hereunder except such action that it may have to such indemnified party on account of the indemnity agreement contained in Section 4.4.1 or Section 4.4.2 above, unless the indemnifying party was prejudiced by such omission, and in no event shall relieve the indemnifying party from any other liability which it may have to such indemnified party. In case any such action shall be brought against any indemnified party and it shall notify an indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party, and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under Section 4.4.1 or Section 4.4.2 above for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof or response thereto other than reasonable costs of investigation. Notwithstanding the above, however, if representation of one or more indemnified parties by the counsel retained by the indemnifying party would be inappropriate due to actual conflicting interests between such indemnified parties (the "Conflicting Indemnified Parties") and any other party represented by such counsel in such proceeding, then such Conflicting Indemnified Parties shall have been prejudiced the right to retain one separate counsel, chosen by a majority of the Conflicting Indemnified Parties, at the expense of the indemnifying party. No indemnifying party, (A) in the defense of any such failure. (b) After claim or litigation, shall, except with the consent of each indemnified party, which consent shall not unreasonably be withheld, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of any Claim Notice pursuant heretoa release from all liability in respect to such claim or litigation, the amount of indemnification to which an Indemnified Party or (B) shall be entitled under this Article XI liable for amounts paid in any settlement if such settlement is effected without the consent of the indemnifying party, which consent shall not be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedunreasonably withheld. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Securities Issuance and Registration Rights Agreement (Innovative Drug Delivery Systems Inc)

Notice of Claims. (a) Any Buyer Group Member ● Prior to filing a court action or Seller Group Member seeking indemnification hereunder (or believing in good faith arbitration against you on a Claim, we must give you written notice of that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a Claim. That notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation of must list the amount of such claimthe Claim. If our Claim is based on your failure to pay, and sending you a reference statement fulfills the notice requirement. ● Prior to the provision filing a court action or arbitration against us on a Claim, you must give us written notice of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such Claim. That notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) After the giving of any Claim Notice pursuant hereto, must list the amount of indemnification the Claim. Limits on Claims ● CLASS ACTION WAIVER. You and we both agree, to which an Indemnified Party the fullest extent allowed by law, to all of the following (the "Class Action Waiver"): o Claims will not under any circumstances be pursued in Class Proceedings; o We waive the right to bring or to participate in Class Proceedings against you; o You waive the right to bring or to participate in Class Proceedings against us; o If some other person initiates a Class Proceeding against you, we may not and will not join that proceeding or participate as a member of that class; and o If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. ● WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY "CLAIM" BE RESOLVED BY BINDING ARBITRATION. ● ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. ● YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. ● Except as otherwise provided in this provision, you and we agree to all of the following: o You may choose to have any Claim we bring against you be resolved through binding arbitration; o We may choose to have any Claim you bring against us be resolved through binding arbitration; o We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; o Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and o If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. ● If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: o Litigate that Claim in court; o Have a jury trial on that Claim; or o Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. ● Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. ● Arbitrations shall be entitled under this Article XI conducted through an Administrator unless one is not available. The Administrator shall be determineda national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. ● The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. ● For arbitrations with an Administrator, all of the below will apply: (io Arbitrations shall be conducted according to the Rules; o The Administrator will provide a listing of possible persons to hear and decide the arbitration; and o The person(s) you and we mutually agree upon from that listing will be the Arbitrator. ● For arbitrations without an Administrator, all of the below will apply: o Arbitrations shall be conducted according to the AAA Rules; o The Arbitrator shall take the place of AAA in the AAA Rules; and o The person(s) you and we mutually agree upon will be the Arbitrator. ● Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. ● You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. ● You and we may be represented by counsel in any arbitration. ● The Arbitrator shall have no authority to award punitive damages. ● Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the written agreement between the Indemnified Party and the IndemnitorArbitrator except: o As noted below for Class Proceedings; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).and

Appears in 1 contract

Samples: Cardmember Agreement

Notice of Claims. (aI) Any If either a Buyer Group Member Indemnitee, on the one hand, or a Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (Indemnitee, on the “Indemnified Party”) other hand, shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) have a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (the “Indemnitee”), the Indemnitee shall, as promptly as is practicable, give written notice (a “Claim Notice”) as promptly as practicable and shall include in such to the party from whom indemnification is sought (the “Indemnitor”) that includes a general description of the facts giving rise to the claim for indemnification hereunder that is the subject of the Claim Notice (if and to the extent then known) the amount or the method of computation ), a good faith estimate of the amount of such claim, claim and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (bII) After An Indemnitor shall have thirty (30) days after the giving of any proper Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determinedhereto to: (i) by agree to the written agreement between amount set forth in the Indemnified Party Claim Notice and the Indemnitor; to pay or cause to be paid such amount to such Indemnitee, or (ii) by provide such Indemnitee with written notice that it disagrees with the claim set forth in the Claim Notice (the “Dispute Notice”). For a final judgment or decree period of forty-five (45) days after the giving of any court Dispute Notice, a representative of competent jurisdiction; the Indemnitor and the Indemnitee shall negotiate in good faith to resolve the matter. In the event that the controversy is not resolved within forty-five (45) days after the date the Dispute Notice is given or Indemnitor fails to provide a timely Dispute Notice pursuant to clause (iiiII)(ii) by any other means above, the Indemnitor and the Indemnitee shall pursue the dispute resolution procedures set forth in Section 11.11. If the Indemnitor agrees to which the Indemnified Party and Claim Notice pursuant to clause (II)(i), then the Indemnitor shall agree. The judgment pay or decree of a court shall cause to be deemed final when paid the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedIndemnitee the amount set forth in the Claim Notice. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Equity Purchase Agreement (RMR Group Inc.)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member party seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) under this Article VIII (the “Indemnified Party”) shall give to shall, within the relevant limitation period provided for in Section 8.1, promptly notify the party obligated to provide indemnification to indemnify such Indemnified Party (or, in the case of a Parent Indemnitee seeking indemnification, such Parent Indemnitee shall promptly notify the Representative) (such notified party, the “IndemnitorResponsible Party”) in writing (a notice “Claim Notice”) describing in reasonable detail the facts giving rise to any claim claims for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or and the method of computation of the amount of such claim, claim and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced; provided, further, that failure timely to give such written notice shall not relieve the Indemnitor Responsible Party of its obligations hereunder hereunder, except to the extent it that the Responsible Party shall have been materially prejudiced by such failure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an . The Indemnified Party shall be entitled under this Article XI shall be determined: (i) by give the written agreement between Responsible Party reasonable access to the books, records and assets of the Indemnified Party and (and, in the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which case the Indemnified Party is a Parent Indemnitee, of the Company and its Subsidiaries) which evidence or support such claim or the act, omission or occurrence giving rise to such claim and the Indemnitor shall agree. The judgment right, upon reasonable prior notice during normal business hours, to interview any appropriate personnel of the Indemnified Party (or decree of a court shall be deemed final when the time for appealCompany or its Subsidiaries, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedas applicable) related thereto. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Merger Agreement (Ennis, Inc.)

Notice of Claims. All claims for indemnification hereunder shall be resolved in accordance with the following procedures: (a) Any If Buyer Group Member or Seller Group Member seeking indemnification hereunder (Seller, as appropriate, has incurred or believing in good faith reasonably believes that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) any Indemnified Loss (the "Indemnified Party”) "), it shall give deliver promptly written notice to the party obligated to provide indemnification to such Indemnified Party other (the “Indemnitor”"Indemnifying Party") a notice describing setting forth in reasonable detail the facts giving rise to any nature and amount of the Indemnified Loss or potential Indemnified Loss, if possible, and further referencing the sections of this Agreement upon which the claim for indemnification hereunder for such Indemnified Loss is based (a "Claim Notice”) as promptly as practicable and "). If an Indemnified Party receives notice of a third-party claim for which it intends to seek indemnification hereunder, it shall include in such Claim Notice (to give the extent then known) the amount or the method of computation of the amount Indemnifying Party prompt written notice of such claim, and a reference to so that the provision Indemnifying Party's defense of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that under Section 11.4 hereof may be timely instituted. The failure timely by an Indemnified Party to give provide such written notice shall not relieve constitute a waiver of the Indemnitor Indemnified Party's right to indemnity unless such failure has resulted in the loss of its obligations hereunder except substantive rights with respect to the 57 Indemnifying Party's ability to defend such claim, and then only to the extent it shall have been prejudiced by of such failureloss. (b) After the giving of any If, after receiving a Claim Notice pursuant heretofor an Indemnified Loss, the Indemnifying Party desires to dispute such claim or the amount of indemnification claimed in the Claim Notice, it shall deliver to the Indemnified Party a written objection to such claim or payment setting forth the basis for disputing such claim or payment. Such notice shall be delivered within thirty (30) days after the date the Claim Notice to which an it relates is received by the Indemnifying Party. If no such notice is received within the aforementioned 30-day period, the Indemnified Party shall be entitled under this Article XI shall be determined: to payment for such Indemnified Loss from the Indemnifying Party within ten (i10) by days of the written agreement between end of such 30-day objection period, subject to the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree limitations of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedSection 11.7 hereof. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Purchase Agreement (Atrium Companies Inc)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may If any of the Persons to be entitled to indemnification hereunder) indemnified under this ARTICLE IX (the “Indemnified Party”) shall give to has suffered or incurred any Loss (other than one resulting from a Third Party Claim), the party obligated to provide indemnification to such Indemnified Party shall so notify in writing the Party from whom indemnification is sought (the “IndemnitorIndemnifying Party”) a notice promptly after obtaining knowledge of such claim, describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss, the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of the amount of such claimLoss, all with reasonable specificity and containing a reference to the provision provisions of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon respect of which such claim is based; provided that Loss shall have occurred. A failure timely to give such notice in a timely manner pursuant to this Section 9.3(a) shall not relieve limit the Indemnitor obligation of its obligations hereunder the Indemnifying Party under this ARTICLE IX: (i) except to the extent it such Indemnifying Party is prejudiced thereby and (ii) except to the extent expenses are incurred during the period in which notice was not provided. The Indemnified Party shall have been prejudiced reasonably cooperate and assist the Indemnifying Party in determining the validity of any claim of indemnity (including reasonable access to and copies of records and information that are reasonably relevant to such matters and the making available of employees on a mutually convenient basis for providing additional information and explanation of any material relating to such matters). If the Indemnifying Party does not notify the Indemnified Party within sixty (60) calendar days following its receipt of a notice delivered pursuant to this Section 9.1(d) that the Indemnifying Party disputes its liability to the Indemnified Party under this ARTICLE IX, such claim specified by the Indemnified Party in such failurenotice shall be conclusively determined to be a liability of the Indemnifying Party. (b) After the giving of If any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) Proceeding is instituted by the written agreement between the Indemnified Party and the Indemnitor; (ii) by or against a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means third party with respect to which the Indemnified Party intends to claim any Liability or expense as a Loss under this ARTICLE IX, the Indemnified Party shall promptly following receipt by such Indemnified Party of notice of the Third Party Claim notify the Indemnifying Party in writing and in reasonable detail of such Proceeding. Thereafter, the Indemnitor Indemnified Party shall agreedeliver to the Indemnifying Party, promptly following the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. The judgment A failure to give notice and to tender the defense of the Proceeding in a timely manner pursuant to this Section 9.3(b) shall not limit the obligation of the Indemnifying Party under this ARTICLE IX: (i) except to the extent such Indemnifying Party is prejudiced thereby, and for this purpose, any failure to give notice and to tender the defense that results in the Indemnifying Party not controlling or decree of a court participating in such Proceeding shall be deemed final when to prejudice the time for appealIndemnifying Party, if any(ii) except to the extent expenses are incurred during the period in which notice was not provided, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined(iii) except as provided by 9.4 below. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Contribution Agreement (Global Partners Lp)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder For the purposes of this Clause 15 (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunderClaims), “Affiliates” of each of Sandoz and Novartis shall include the Sandoz Indemnitees and Novartis Indemnitees respectively. (b) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified If a Party (the “Indemnitor”Claimant Party) wishes to make a Claim against another Party (the Defendant Party), the Claimant Party shall, subject to Clause 15.3 (Third Party Claims and Investigations Management Agreement), as soon as reasonably practicable after becoming aware of the facts or circumstances giving rise to such Claim (including any written demand or claim that is asserted against the Claimant Party by a Third Party), give written notice to the Defendant Party (the Claim Notice) containing reasonably specific details of: (i) the Claim, including such Information as is available to the Claimant Party (or its Affiliates) to enable the Defendant Party to reasonably assess the Claim; (ii) to the extent reasonably practicable, the Claimant Party’s estimate (on a without prejudice basis), on the basis of the Information then available to the Claimant Party, of the amount of the Liabilities which are, or are to be, the subject of the Claim (if known) and the method of computation thereof; (iii) where such Claim is a demand from an Indemnitee for an Indemnity Payment, the amount of such Indemnity Payment and reasonably satisfactory documentation setting forth the basis for such amount, including documentation with respect to calculations made and consideration of any Insurance Proceeds that would reduce the amount of such Liabilities; and (iv) any other remedies sought by the Claimant Party in relation to the Claim. To the extent a reasonable estimate and/or method of computation cannot reasonably be provided in the Claim Notice in accordance with Clause 15.2(b)(ii), the Claimant Party shall provide such Information to the Defendant Party as soon as reasonably practicable thereafter. (c) Following the delivery of a Claim Notice pursuant to Clause 15.2(b), the Defendant Party shall have a period of 45 days within which to object to any such notice, stating whether it disputes the Claim, and describing in reasonable detail the facts giving rise basis for its objection thereto. If the Defendant Party does not so respond within such 45-day period stating that the Defendant Party disputes its liability for such Claim, the Defendant Party shall be deemed to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in have accepted such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failureClaim. (bd) After If the giving of any Parties are disputing a Claim Notice pursuant heretofollowing the procedure outlined above, the amount provisions of indemnification to which an Indemnified Party Clause 38 (Dispute Resolution) shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedapply. (ce) In calculating any Loss or Expense there The regime provided for in this Clause 15.2 (Notice of Claims) shall be deducted in lieu of, and not in addition to, any insurance recovery Claimant Party’s duty to inspect and notify the Defendant Party in respect thereof accordance with article 201 of the Swiss CO. (f) The failure of a Party to comply fully with its obligations under this Clause 15.2 (Notice of Claims) shall not release the other Party from its obligations and no right of subrogation shall accrue hereunder any liability with regard to any insurer)the relevant Claim.

Appears in 1 contract

Samples: Separation and Distribution Agreement (Novartis Ag)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member Except with respect to claims for Taxes, which are addressed in Section 6.2(c), any Covered Party seeking indemnification hereunder (or believing shall, within the relevant limitation period provided for in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall Section 8.1 above, give to the party Party which is obligated pursuant to this Article VIII to provide indemnification to such Indemnified Party as set forth herein (the “IndemnitorIndemnifying Party”) a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any claim claims for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document certificate or instrument executed hereunder pursuant hereto or in connection herewith upon which such claim is based; provided, that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced; and provided further, that failure timely to give such notice shall not relieve the Indemnitor of its obligations affect such Covered Party’s right to indemnification hereunder except to the extent it the Indemnifying Party shall have been materially prejudiced by such failure. (b) After the giving The Indemnifying Party shall have thirty days after receipt of any Claim Notice pursuant hereto, the amount of indemnification hereto to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by agree to the written agreement between amount or method of determination set forth in the Claim Notice to pay such amount to (A) a Parent Indemnified Party in immediately available funds (solely to the extent that such funds are available in the Escrow Account) or to the extent that no funds are available in the Escrow Account, solely as an offset against up to $5,900,000 of the Subsequent Merger Consideration Payments, when and the Indemnitor; if payable, or (B) a Company Indemnified Party in immediately available funds or (ii) by a final judgment to provide such Covered Party with notice that they disagree with the amount or decree method of any court of competent jurisdiction; or (iii) by any other means to which determination set forth in the Indemnified Party Claim Notice and thereafter comply with the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery dispute resolution provisions set forth in respect thereof (and no right of subrogation shall accrue hereunder to any insurerSection 2.13(h).

Appears in 1 contract

Samples: Merger Agreement (Pharmion Corp)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may If any of the Persons to be entitled to indemnification hereunder) indemnified under this Article IX (the “Indemnified Party”) has suffered or incurred any Loss, the Indemnified Party shall give to so notify the party obligated to provide from whom indemnification to such Indemnified Party is sought (the “IndemnitorIndemnifying Party”) a notice promptly in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss, the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of the amount of such claimLoss, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document instrument or instrument executed hereunder or certificate delivered pursuant hereto in connection herewith upon respect of which such Loss shall have occurred. If any action at Law or suit in equity is instituted by or against a third party with respect to which the Indemnified Party intends to claim is based; provided that any Liability as a Loss under this Article IX, the Indemnified Party shall promptly notify the Indemnifying Party of such action or suit and tender to the Indemnifying Party the defense of such action or suit. A failure timely by the Indemnified Party to give such notice and to tender the defense of the action or suit in a timely manner pursuant to this Section 9.03 shall not relieve limit the Indemnitor obligation of its obligations hereunder the Indemnifying Party under this Article IX, except (i) to the extent it shall have been such Indemnifying Party is prejudiced thereby, (ii) to the extent expenses are incurred during the period in which notice was not provided, and (iii) as provided by such failureSection 9.05. (b) After the giving of any Claim Notice pursuant heretoExcept when a notice, the amount of indemnification to which an Indemnified Party shall report or other filing must be entitled under this Article XI shall be determined: (i) filed immediately as required by the written agreement between applicable Environmental Laws, the Indemnified Party will provide notice and an opportunity to comment to the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which Indemnifying Party before the Indemnified Party and files any Required Governmental Report or any other report, notification or filing with any Governmental Authority or third party in connection with an event that would be reasonably likely to result in a Loss subject to the Indemnitor shall agreeindemnification provisions of this Article IX. The judgment In the event the Indemnified Party is required to file a Required Governmental Report or decree of a court shall be deemed final any other report, notification or filing immediately, the Indemnified Party will provide simultaneous notice to the Indemnifying Party when it files such report with the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedGovernmental Authority. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Stock and Asset Purchase Agreement (Advanced Medical Optics Inc)

Notice of Claims. (a) Any Buyer Group Member In the case of a claim for indemnification other than pursuant to Section 7.4 hereof, upon determination by a Purchaser Indemnified Party or a Seller Group Member seeking indemnification hereunder (or believing in good faith Indemnified Party, as the case may be, that it may suffer or incur Losses or Expenses has a claim for which it is or may be entitled to indemnification hereunderindemnification, the Indemnified Party shall deliver notice of such claim (each, an "INDEMNIFICATION NOTICE") (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing Indemnifying Party, setting forth in reasonable detail the facts giving rise to any basis of such claim for indemnification hereunder under Section 7.2 or Section 7.3 and the Indemnified Party's reasonable estimate of the dollar amount of such claim (a “Claim Notice”) as promptly as practicable and shall include in such Claim the "ESTIMATED INDEMNIFICATION AMOUNT"). Upon the Indemnification Notice (having been given to the extent then knownIndemnifying Party, the Indemnifying Party shall have thirty (30) days in which to notify the amount or Indemnified Party in writing (the method of computation of "DISPUTE NOTICE") that the amount of the claim for indemnification is in dispute, setting forth in reasonable detail the basis of such claim, and dispute. In the event that a reference Dispute Notice is not given to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve Indemnified Party within the Indemnitor of its obligations hereunder except to required thirty (30) day period the extent it shall have been prejudiced by such failure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Indemnifying Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between obligated to pay to the Indemnified Party and in the Indemnitor; amount set forth in the Indemnification Notice within sixty (ii60) by days after the date that the Indemnification Notice had been given to the Indemnifying Party. In the event that a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means Dispute Notice is timely given to which an Indemnified Party, the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, parties hereto shall have expired and no appeal thirty (30) days to resolve any such dispute. In the event that such dispute is not resolved by such parties within such period, the parties shall have been taken or when the right to pursue all appeals taken shall have been finally determinedlegal remedies available under Section 8.5. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Asset Purchase Agreement (Sl Industries Inc)

Notice of Claims. (a) Any Buyer Group Member or Seller ---------------- Group Member seeking indemnification hereunder (the "Indemnified Party") shall ----------------- give promptly after discovery by such Indemnified Party of any event or believing in good faith that it may suffer or incur Losses or Expenses circumstance giving rise to a claim for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a notice (a "Claim Notice") describing in reasonable detail the ---------- ------------ materials facts giving then known to such Indemnified Party that gave rise to any the claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim; provided, and a reference -------- however, that the Sellers are deemed to have been provided notice of an ------- indemnification claim by the provision of this Agreement or any other agreement, document or instrument executed hereunder or Buyer in connection herewith upon which such claim with the FTC Investigation, [the Xxxxxx earn-out] and the pending or threatened lawsuits, proceedings or investigations identified on Schedule 5.13. Notwithstanding the foregoing, it --------------- is based; provided understood and agreed that (a) any failure timely by the Indemnified Party to give such provide any notice to any Indemnitor shall not relieve the Indemnitor of its obligations hereunder affect such Indemnified Party's right to indemnification hereunder, except to the extent it shall have been prejudiced such failure materially impairs the ability of the Indemnitor to defend the claim made by such failure. Indemnified Party and (b) After subject to the giving of any Claim Notice pursuant heretotime limitations set forth in Section ------- 11.1(b) and 11.2(b), the amount of indemnification to which an no Indemnified Party shall be entitled under this Article XI shall be determined: required to give notice to ------- ------- the Indemnitor of (i) any Violation of Law by the written agreement between Company, any of its Subsidiaries or any of their respective predecessors other than any claim involving the Indemnified Party and the Indemnitor; violation of a criminal law or (ii) by a final judgment or decree claims pursuant to clause (vi) of any court of competent jurisdiction; or (iii) by any other means to which the Section 11.1(a), until such time as such Indemnified Party and elects to assert a --------------- claim against the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery Sellers in respect thereof of such Violation of Law or pursuant to clause (and no right vi) of subrogation shall accrue hereunder to any insurerSection 11.1(a).. ---------------

Appears in 1 contract

Samples: Merger Agreement (Nationwide Credit Inc)

Notice of Claims. (a) Any Buyer Group Member Collegium Indemnitee or Seller Group Member seeking indemnification hereunder (or believing in good faith Depomed Indemnitee claiming that it may suffer has suffered or incur Losses or Expenses incurred any Loss for which it is or may be entitled to indemnification hereunder) under this Article 12 (the “Indemnified Party”) shall give prompt written notice to the party obligated to provide from whom indemnification to such Indemnified Party is sought (the “IndemnitorIndemnifying Party”) of the matter, action, cause of action, claim, demand, fact or other circumstances upon which a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder under this Article 12 (each, a “Claim NoticeClaim”) may be based. Such notice shall contain, with respect to each Claim, such facts and information as promptly as practicable and shall include in are then reasonably available with respect to such Claim Notice (to Claim, including a description of the extent then known) Losses suffered or incurred by the Indemnified Party, the amount or estimated amount of such Losses (if known or reasonably capable of estimation) and the method of computation of the amount of such claimLosses, and a reference to the provision provisions of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon respect of which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it Loss shall have been prejudiced by such failure. (b) After the giving of occurred. If any Claim Notice pursuant heretois based on any action, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: claim, suit or proceeding (iin equity or at law) by the written agreement between the Indemnified Party and the Indemnitor; (ii) instituted by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means Third Party with respect to which the Indemnified Party intends to claim Certain information in this document has been omitted and filed separately with the Indemnitor shall agreeSecurities and Exchange Commission. The judgment or decree of a court shall be deemed final when Confidential treatment has been requested with respect to the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating omitted portions marked [***]. any Loss under this Article 12 (a “Third Party Claim”), the Indemnified Party shall promptly notify (the “Third Party Claim Notice”), in writing, the Indemnifying Party of such Third Party Claim and offer to tender to the Indemnifying Party the defense of such Third Party Claim. A failure by the Indemnified Party to give written notice of and to offer to tender the defense of any Third Party Claim in a timely manner pursuant to this Section 12.3 shall not limit the obligation of the Indemnifying Party under this Article 12, except (a) to the extent such Indemnifying Party is actually prejudiced thereby or Expense there shall be deducted any insurance recovery (b) as provided in respect thereof (and no right of subrogation shall accrue hereunder to any insurer)Section 12.5.

Appears in 1 contract

Samples: Commercialization Agreement (Collegium Pharmaceutical, Inc)

Notice of Claims. Within twenty (a20) Any days after Sellers’ Representative or Buyer Group Member becomes aware of any claim that any Seller Indemnified Party or Buyer Indemnified Party, respectively, has under Section 8.1 that may result in a Loss for which such Seller Group Member seeking Indemnified Party or Buyer Indemnified Party, as applicable, is entitled to indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) a “Claim”), such Party (the “Indemnified Party”) shall give notice of such Claim (a “Claims Notice”) to Sellers (by notice to Sellers’ Representative), in the party obligated case of a Claim by Buyer, or to provide indemnification to Buyer, in the case of a Claim by Sellers (such Indemnified Party (Party, the “IndemnitorIndemnifying Party) a notice describing ). A Claims Notice shall describe the Claim in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (indicate, to the extent then known) feasible, the estimated amount or the method of computation of the amount of such claimLoss that has been or may be suffered by the Indemnified Party and any other Buyer Indemnified Party or Seller Indemnified Party, and as applicable. No delay in giving a reference Claims Notice by the Indemnified Party to the provision Indemnifying Party pursuant to this Section 8.3(a) shall adversely affect any of the other rights or remedies that the Indemnified Party or any other Buyer Indemnified Party or Seller Indemnified Party, as applicable, has under this Agreement or alter or relieve the Indemnifying Party of its obligation to indemnify the Indemnified Party or any other agreementBuyer Indemnified Party or Seller Indemnified Party, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder as applicable, except to the extent it shall have been prejudiced by that such failure. (b) After delay or failure has increased the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer)otherwise materially prejudiced the Indemnifying Party.

Appears in 1 contract

Samples: Merger Agreement (MGP Ingredients Inc)

Notice of Claims. If either a Buyer Indemnified Party, on the one hand, or a Seller Indemnified Party, on the other hand (a) Any such Buyer Group Member or Indemnified Party on the one hand and such Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled Indemnified Party on the other hand being hereinafter referred to indemnification hereunder) (the as an “Indemnified Party”) shall give to ), has suffered or incurred any Loss for which indemnification may be sought under this Article 6, the party obligated to provide indemnification to such Indemnified Party shall so notify the other party from whom indemnification is sought under this Article 6 (the “IndemnitorIndemnifying Party”) a notice promptly (and in any case within fourteen (14) calendar days after such Loss has been suffered or incurred by the Indemnified Party) in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss, the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of the amount of such claimLoss, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon respect of which such claim is basedLoss shall have occurred; provided provided, however, that a failure timely to by an Indemnified Party to give such timely notice of a Loss in a timely manner pursuant to this Section 6.2 shall not relieve limit or otherwise affect the Indemnitor indemnification obligation of its obligations hereunder the Indemnifying Party under this Article 6, except to the extent it shall have been such Indemnifying Party is actually prejudiced thereby. If any claim, action, suit or proceeding is asserted or instituted by such failure. the Licensee or a Third Party (ba “Third Party Claim”) After the giving of any Claim Notice pursuant hereto, the amount of indemnification with respect to which an Indemnified Party shall be entitled intends to claim any Loss under this Article XI 6, such Indemnified Party shall be determined: promptly (iand in any case within five (5) by the written agreement between calendar days after the Indemnified Party’s receipt of notice of the commencement of such Third Party and Claim) notify the Indemnitor; (ii) Indemnifying Party of such claim, action, suit or proceeding. A failure by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the an Indemnified Party and the Indemnitor shall agree. The judgment or decree to give timely notice of a court Third Party Claim in a timely manner pursuant to this Section 6.2 shall be deemed final when not limit or otherwise affect the time for appealindemnification obligation of the Indemnifying Party under this Article 6, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedexcept to the extent such Indemnifying Party is actually prejudiced thereby. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Royalty Purchase Agreement (Cytokinetics Inc)

Notice of Claims. (a) Any Buyer Group Member Except in connection with third person claims, which are covered by Section 7.5, claims related to Taxes, which are covered by Article V, and claims related to the Xxxxx Litigation, which are covered by the Joint Defense Agreement, any Acquisition Indemnified Party or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) Indemnified Party (the “Indemnified Party”) shall seeking indemnification hereunder shall, within the relevant limitation period provided for in Section 7.6 below, give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice (a “Claim Notice”) within 30 days after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss, describing in reasonable detail the facts giving rise to any claim claims for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided provided, that failure timely to give such notice within such 30-day period shall not relieve the any Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. . The Indemnitors shall have a period of 30 days after receipt by the Indemnitors of such notice and such evidence to either (bi) After agree to the giving payment of any Claim Notice pursuant heretothe Loss to the Indemnified Party or (ii) contest the payment of the Loss. If the Indemnitors do not agree to or contest the payment of the Loss within such 30 day period, the Indemnitors shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute and, if not resolved through negotiations, such dispute will be resolved in accordance with Section 9.4 of this Agreement. If the Indemnitors agree to the payment of the Loss within such 30 day period, they shall, within 10 business days after such agreement, pay to the Indemnified Party the amount of indemnification the Loss that is payable pursuant to, and subject to which an Indemnified Party shall be entitled under the limitations set forth in, this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined7. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Purchase Agreement (Services International LLC)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) seeking indemnification hereunder shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that a Claim Notice in respect of any pending or threatened action at law or suit in equity by or against a third Person as to which indemnification will be sought (each such action or suit being a “Third Person Claim”) shall be given promptly, but in no event more than ten (10) Business Days following such Indemnified Party’s receipt of such Third Person Claim; provided, further, that failure timely to give such notice within such ten (10) Business Day period shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. The Indemnitor shall have twenty (20) Business Days from receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party whether or not it desires to defend the Indemnified Party against such Third Person Claim. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense, such Loss or Expense there shall be deducted (i) reduced by any insurance recovery payable in respect thereof (and no right of subrogation shall accrue hereunder to any insurer); and (ii) reduced by any indemnity, contribution or other similar recovery payable to the Indemnified Party (other than pursuant to this Agreement) with respect to such Loss or Expense.

Appears in 1 contract

Samples: Asset Purchase Agreement (Broadpoint Securities Group, Inc.)

Notice of Claims. (a) Any Buyer Group Member Indemnitee or Seller Group Member Indemnitee seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall shall, within the relevant limitation period provided for in Section 9.1, give to the party obligated to provide indemnification to such Indemnified Party from whom identification is sought (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder writing (a “Claim Notice”) as promptly as practicable and describing in reasonable detail any claim for indemnification hereunder and, to the extent known to the Indemnified Party, the facts giving rise to such claim for indemnification. The Indemnified Party shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the provision provision(s) of this Agreement pursuant to which such claim for indemnification is made including, if applicable, the representation or any other agreement, document or instrument executed hereunder or in connection herewith upon warranty with respect to which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failurebeing made. (b) After The Buyer or the giving Sellers, as applicable, shall have thirty (30) calendar days after the receipt of any Claim Notice pursuant hereto, the amount of indemnification hereto to which an Indemnified Party shall be entitled under this Article XI shall be determined: either (i) by agree that the written agreement between applicable Indemnitor has an indemnification obligation under Article IX, agree to the amount or method of determination set forth in the Claim Notice and to pay such amount to such Indemnified Party in immediately available funds or (ii) provide such Indemnified Party with notice that it disagrees with the assertion that the Indemnitor has an indemnification obligation under Article IX or the amount or method of determination set forth in the Claim Notice. If the Buyer or the Sellers, as applicable, sends such a notice, then the Indemnified Party and the Indemnitor; (ii) by a final judgment Buyer or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appealSellers, if anyas applicable, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedattempt in good faith to resolve any disputed claim within thirty (30) calendar days thereafter. (c) In calculating any Loss or Expense there Notwithstanding the foregoing, the provisions of this Section 9.4 shall be deducted any insurance recovery not apply in respect thereof (and no right the case of subrogation shall accrue hereunder to any insurer)a Claim Notice provided in connection with a claim by a third Person made against an Indemnified Party, which claims are governed by Section 9.5.

Appears in 1 contract

Samples: Stock Purchase Agreement (Ari Network Services Inc /Wi)

Notice of Claims. (a) Any Buyer Group Member If Parent or Seller Group Member seeking indemnification hereunder (or believing in good faith any Significant Shareholder believes that it may suffer or incur Losses or Expenses for which it is or may be entitled or, with respect to indemnification hereunder) Parent, the Surviving Corporation (along with Parent and the Significant Shareholders, as applicable, the "Indemnified Party") has suffered or incurred any Loss or incurred any Expense, the Indemnified Party shall give to so notify the party obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a notice promptly in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss or Expense, the amount or thereof, if known, and the method of computation of the amount of such claimLoss or Expense, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document instrument or instrument executed hereunder or certificate delivered pursuant hereto in connection herewith upon respect of which such Loss or Expense shall have occurred. If any action at law or suit in equity is instituted by or against a third party with respect to which the Indemnified Party intends to claim is based; provided that failure timely to give such notice any liability or expense as Loss or Expense under this Article VIII, the Indemnified Party shall not relieve promptly notify the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failureaction or suit. (b) After the giving of any Claim Notice pursuant hereto, the The amount of indemnification to which an Indemnified Party shall be entitled under this Article XI VIII shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdictionarbitration in accordance with Section 10.14 hereof; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court court, or binding arbitration award, shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have the burden of proof in establishing the amount of the Loss and Expense suffered by it. (c) Notwithstanding the foregoing, the failure of any person hereto to give any notice described in this Section 8.3 shall not relieve any party hereto of its obligations hereunder, except to the extent such failure shall have prejudiced such party. (d) In calculating any Loss or Expense Expense, there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer). (e) Any indemnification payment under this Article VIII shall be made on an After-Tax Basis. (f) Except with respect to any fraud claims as to which the limitations set forth in this paragraph shall not apply, Parent and the Significant Stockholders shall not be required to indemnify, exculpate and hold the other harmless pursuant to this Article VIII, unless Parent, the Surviving Corporation or the Significant Stockholders, as the case may be, have asserted a claim(s) with respect to such matters in accordance with the procedures set forth herein within twelve (12) months from the Effective Date.

Appears in 1 contract

Samples: Supplemental Agreement (Combined Professional Services Inc)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it If any claim is or may made against a party which, if sustained, would give rise to a liability of the other hereunder, the Claiming Party shall promptly cause notice of the claim to be entitled to indemnification hereunder) (the “Indemnified Party”) shall give delivered to the party obligated to provide indemnification to such Indemnified Non-claiming Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include afford the Non-claiming Party and its counsel, at its sole expense, the opportunity to defend or settle the claim (provided that the Claiming Party and its counsel may participate at their sole cost and expense) provided that the Non-claiming Party admit in writing its responsibility for such Claim Notice (to claim. Any notice of a claim shall state with reasonable specificity the extent then known) representation, warranty, covenant or agreement allegedly breached, the amount or alleged basis for the method of computation of claim, and the amount of liability asserted against the other party by reason of the claim (if such amount can be reasonably estimated). If such notice and opportunity are not given, or if any claim is compromised or settled without notice to and consent of the Non-claiming Party, no liability shall be imposed on the Non-claiming Party by reason of such claim (unless the claiming party is prejudiced by any such failure to timely provide notice or assume the defense), but if notice is given and the Non-claiming Party receiving the notice fails to assume the defense of the claim or fails to admit in writing its liability with respect to such claim, the claim may be defended, compromised or settled by the Claiming Party without the Non-claiming Party's consent and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Non-claiming Party shall be entitled remain liable under this Article XI shall be determined: 8. Notwithstanding anything contained in this Section 8.5 to the contrary, the Claiming Party may retain control over the defense of any claim hereunder if such control is necessary to (i) by the written agreement between the Indemnified Party and the Indemnitor; prevent its assets or business from being seized, attached or otherwise encumbered or enjoined as a result of such third-party action or (ii) by respond to and control any action requiring immediate response, such as prayers for injunctive and other emergency relief. The parties shall cooperate at all times in reasonable requests for documents, testimony and other forms of assistance in connection with any claim pursuant to this Section 8.5. The Non-claiming Party shall not in the defense of any such claim consent to the entry of any judgment against or affecting the Claiming Party or any Affiliate (other than a final judgment or decree a dismissal on the merits and without costs) except with the written consent of the Claiming Party (which shall not be unreasonably withheld or delayed), or enter into any court settlement (except with the written consent of competent jurisdiction; the Claiming Party, which shall not be unreasonably withheld or delayed) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Claiming Party of a full release in respect to such claim. If the claim does not arise from the claim or demand of a third party, the Non-claiming Party shall have thirty (iii30) days after the receipt of the written notice of such claim to object to the claim by any other means giving written notice to which the Indemnified Claiming Party specifying the reasons for such objection or objections. If the Non-claiming Party does not so object to the claim, the total amount of the claim shall be promptly paid by the Non-claiming Party. If the Non-claiming Party objects to the claim and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when parties are unable to settle any such dispute, then the time for appeal, if any, parties shall have expired all rights and no appeal shall have been taken remedies at law or when all appeals taken shall have been finally determinedin equity, and either the Claiming Party or Non-claiming Party may commence an action or proceeding in accordance with Section 11.2 to resolve such dispute. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Limited Liability Company Interest Purchase and Asset Contribution Agreement (Allied Products Corp /De/)

Notice of Claims. (a) Any Buyer Group Member Purchaser Indemnitee or Seller Group Member seeking indemnification hereunder (or believing in good faith Indemnitee claiming that it may suffer has suffered or incur Losses or Expenses incurred any Loss for which it is or may be entitled to indemnification hereunder) under this Article VIII (the “Indemnified Party”) shall give prompt written notice to the party obligated to provide Party from whom indemnification to such Indemnified Party is sought (the “IndemnitorIndemnifying Party”) of the matter, action, cause of action, claim, demand, fact or other circumstances upon which a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder under this Article VIII (a each, an Claim NoticeIndemnity Claim”) may be based. Such written notice shall contain, with respect to each Indemnity Claim, such facts and information as promptly as practicable and shall include in are then reasonably available with respect to such Claim Notice (to Indemnity Claim, including a description of the extent then known) Losses suffered or incurred by the Indemnified Party, the amount or estimated amount of such Losses (if known or reasonably capable of estimation) and the method of computation of the amount of such claimLosses, and a reference to the provision provisions of this Agreement or any other agreement, document instrument or instrument executed hereunder or certificate delivered pursuant hereto in connection herewith upon respect of which such claim is based; provided that Loss shall have occurred. A failure timely by the Indemnified Party to give such notice of an Indemnity Claim in a timely manner pursuant to this Section 8.03 shall not relieve limit the Indemnitor obligation of its obligations hereunder the Indemnifying Party under this Article VIII, except (a) to the extent it shall have been such Indemnifying Party is actually prejudiced by such failure. thereby or (b) After as provided in Section 8.05. In the giving of any Claim Notice pursuant heretoevent that the Indemnifying Party agrees to or is determined (by final arbitral award) to have an obligation to reimburse the Indemnified Party for Losses as provided in this Article VIII, the Indemnifying Party shall, subject to the provisions of Section 8.06, promptly (but, in any event, within 30 days following such agreement or determination) pay such amount to the Indemnified Party by wire transfer of indemnification immediately available funds to which the account specified in writing by the Indemnified Party. If an Indemnifying Party objects in writing to any Indemnity Claim made in such Indemnity Claim notice, then the Indemnifying Party and the Indemnified Party shall be entitled under this Article XI shall be determined: (i) by attempt in good faith for a period of 20 days following the written Indemnified Party’s receipt of such objection notice to agree upon the respective rights of the parties with respect to each of such Indemnity Claims. If no such agreement between is reached after such 20-day period of good faith negotiation, or if the Indemnifying Party does not object in writing to such Indemnity Claim notice, then either the Indemnifying Party or the Indemnified Party and may initiate arbitration for purposes of having the Indemnitor; matter settled in accordance with Section 10.11. If any Indemnity Claim is based on any action, claim, suit or proceeding (iiin equity or at law) instituted by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means third party with respect to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating intends to claim any Loss under this Article VIII (a “Third Party Claim”), then the Indemnified Party shall promptly notify (the “Third Party Claim Notice”) in writing the Indemnifying Party of such Third Party Claim and offer to tender to the Indemnifying Party the defense of such Third Party Claim. A failure by the Indemnified Party to give notice of and to offer to tender the defense of any Third Party Claim in a timely manner pursuant to this Section 8.03 shall not limit the obligation of the Indemnifying Party under this Article VIII, except (a) to the extent such Indemnifying Party is actually prejudiced thereby or Expense there shall be deducted any insurance recovery (b) as provided in respect thereof (and no right of subrogation shall accrue hereunder to any insurer)Section 8.05.

Appears in 1 contract

Samples: Asset Purchase Agreement (Assertio Therapeutics, Inc)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder If any of the Persons to be indemnified under this Article VIII (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the each, an “Indemnified Party”) has suffered or incurred any Loss, the Indemnified Party shall give to so notify the party obligated to provide from whom indemnification to such Indemnified Party is sought (the “IndemnitorIndemnifying Party”) a notice promptly in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss, the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of the amount of such claimLoss, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document instrument or instrument executed hereunder or certificate delivered pursuant hereto in connection herewith upon respect of which such claim Loss shall have occurred. If any action at Law or suit in equity is based; provided that instituted by or against a third party with respect to which the Indemnified Party intends to seek indemnification under this Article VIII, the Indemnified Party shall promptly notify the Indemnifying Party of such action or suit and permit the Indemnifying Party to participate in and control the defense of such action or suit. A failure timely to give such notice in a timely manner pursuant to this Section 8.3 shall not relieve limit the Indemnitor obligation of its obligations hereunder the Indemnifying Party under this Article VIII, except (i) to the extent it shall have been such Indemnifying Party is materially prejudiced thereby; (ii) to the extent expenses are incurred during the period in which notice was not provided; and (iii) as provided by such failureSection 8.5 below. (b) After the giving Except when a notice, report or other filing must be filed immediately pursuant to an express requirement of any Claim Notice pursuant heretoEnvironmental Laws, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party will provide notice and an opportunity to comment to the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which Indemnifying Party before the Indemnified Party and files any Required Governmental Report or any other report, notification or filing with any Governmental Authority or third party in connection with an event that would be reasonably likely to result in a Loss subject to the Indemnitor shall agreeindemnification provisions of this Article VIII. The judgment In the event the Indemnified Party is required to file a Required Governmental Report or decree of a court shall be deemed final any other report, notification or filing immediately, the Indemnified Party will provide simultaneous notice to the Indemnifying Party when it files such report with the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedGovernmental Authority. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Purchase and Sale Agreement (Xethanol Corp)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may If any of the Persons to be entitled to indemnification hereunder) indemnified under this Article IX (the “Indemnified Party”) has suffered or incurred any Loss, the Indemnified Party shall give to so notify the party obligated to provide from whom indemnification to such Indemnified Party is sought (the “IndemnitorIndemnifying Party”) a notice promptly in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss, the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of the amount of such claimLoss, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document instrument or instrument executed hereunder or certificate delivered pursuant hereto in connection herewith upon respect of which such Loss shall have occurred. If any action at Law or suit in equity is instituted by or against a third party with respect to which the Indemnified Party intends to claim is based; provided that any Liability as a Loss under this Article IX, the Indemnified Party shall promptly notify the Indemnifying Party of such action or suit and tender to the Indemnifying Party the defense of such action or suit. A failure timely by the Indemnified Party to give such notice and to tender the defense of the action or suit in a timely manner pursuant to this Section 9.3 shall not relieve limit the Indemnitor obligation of its obligations hereunder the Indemnifying Party under this Article IX, except (i) to the extent it shall have been such Indemnifying Party is prejudiced thereby, (ii) to the extent expenses are incurred during the period in which notice was not provided, and (iii) as provided by such failureSection 9.5. (b) After Each party will provide notice and an opportunity to comment to the giving other party before filing any report, notification or filing with any Governmental Authority or third party in connection with an event that would be reasonably likely to result in a Loss subject to the indemnification provisions of this Article. In the event a party is required to file any Claim Notice pursuant heretoreport, notification or filing immediately, such party will provide simultaneous notice to the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by other party when it files the written agreement between report with the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedGovernmental Authority. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Asset Purchase Agreement (Cerner Corp /Mo/)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may If any of the Persons to be entitled to indemnification hereunder) indemnified under this Article VIII (the "Indemnified Party") has suffered or incurred any Loss or has received notice of any actual or potential Third Party Claim, the Indemnified Party shall give to so notify the party obligated to provide from whom indemnification to such Indemnified Party is sought (the “Indemnitor”"Indemnifying Party") a notice promptly in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss or Third Party Claim, the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of the amount of such claimLoss or Third Party Claim, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document instrument or instrument executed hereunder or certificate delivered pursuant hereto in connection herewith upon respect of which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it Loss or Third Party Claim shall have been prejudiced occurred. If any action at law or suit in equity is instituted by such failure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by or against a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means third party with respect to which the Indemnified Party intends to claim any liability or expense as a Loss or Third Party Claim under this Article VIII, the Indemnified Party shall promptly notify the Indemnifying Party of such action or suit and tender the Indemnitor Indemnified Party the defense of such action or suit. A failure to give notice and to tender the defense of the action or suit in a timely manner pursuant to this Section 8.3 shall agree. The judgment or decree not limit the obligation of a court shall be deemed final when the time for appealresponsible Person under this Article VIII, if anyexcept (i) to the extent such Indemnified Party is prejudiced thereby, shall have expired (ii) to the extent expenses are incurred during the period in which notice was not provided, and no appeal shall have been taken or when all appeals taken shall have been finally determined.(iii) as provided by Section 8.5 below, (cb) In calculating Except when an immediate notice, report or other filing must be filed pursuant to Environmental Law, Purchaser will provide notice and an opportunity to comment to Pfizer before Purchaser files any Required Governmental Report or any other report, notification or filing with any Governmental Authority or third party that would be reasonably likely to result in a Loss or Expense there shall be deducted Third Party Claim. In the event Purchaser is required to file an immediate Required 80 Governmental Report or any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder other immediate report, notification or filing, Purchaser will provide simultaneous notice to any insurer)Pfizer when it files the report with the Governmental Authority.

Appears in 1 contract

Samples: Asset Purchase Agreement (American Medical Systems Holdings Inc)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member Indemnified Party seeking indemnification hereunder shall, within the relevant limitation period provided for in Section 12.1, give to Seller a written notice (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the a Indemnified PartyNotice of Claim”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim claims for indemnification hereunder of Losses and an estimate of Losses (a “Claim Notice”) as promptly as practicable and shall include which, in such Claim Notice (to the extent then known) case of Losses not yet incurred, paid or accrued, may be the amount reasonably anticipated to be incurred, paid or accrued); provided, that a Notice of Claim in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the method action or suit is commenced. The Parties agree that in no event shall the information contained in the Notice of computation of Claim limit in any manner the amount of such claim, and a reference to the provision of Indemnified Party’s rights for indemnification under this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failureAgreement. (b) After Seller shall have 20 days after receiving any Notice of Claim pursuant hereto to (i) agree to the amount set forth in the Notice of Claim and to pay such amount to such Indemnified Party in immediately available funds or (ii) provide such Indemnified Party with written notice that it disagrees with the amount set forth in the Notice of Claim (the “Indemnity Dispute Notice”). Within 15 days after the giving of any Claim Notice pursuant heretoIndemnity Dispute Notice, a representative of Seller and the amount of indemnification to which an Indemnified Party shall be entitled under negotiate in good faith to resolve the matter. In the event that the controversy is not resolved within 30 days of the giving of the Indemnity Dispute Notice, the Parties shall thereupon and only thereupon proceed to pursue any and all available remedies at law, subject to Sections 12.2 and 12.3 of this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedAgreement. (c) In calculating any Loss or Expense there Notwithstanding the foregoing, the provisions of this Section 12.3 shall be deducted any insurance recovery not apply in respect thereof (and no right the case of subrogation shall accrue hereunder to any insurer)a Notice of Claim provided in connection with a claim by a third Person made against an Indemnified Party, which claims are provided for by Section 12.4.

Appears in 1 contract

Samples: Asset Purchase Agreement (Easylink Services International Corp)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be If a party entitled to indemnification hereunder) indemnity pursuant to section 8.1 or 8.2 (the "Indemnified Party") believes that he or it has suffered or incurred any Loss or incurred any Expense, the Indemnified Party shall give to so notify the party obligated to provide indemnification to such Indemnified Party the indemnifying party (the "Indemnitor") a notice promptly in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss or Expense, the amount or thereof, if known, and the method of computation of the amount of such claimLoss or Expense, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document instrument or instrument executed hereunder or certificate delivered pursuant hereto in connection herewith upon respect of which such Loss or Expense shall have occurred. If any action at law or suit in equity is instituted by or against a third party with respect to which the Indemnified Party intends to claim is based; provided that failure timely to give such notice any liability or expense as Loss or Expense under this Article VIII, the Indemnified Party shall not relieve promptly notify the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failureaction or suit. (b) After the giving of any Claim Notice pursuant hereto, the The amount of indemnification to which an the Indemnified Party shall be entitled under this Article XI VIII shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; arbitration in accordance with Section 11.13 hereof, or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court court, or binding arbitration award, shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have the burden of proof in establishing the amount of the Loss and Expense suffered by it. (c) In calculating Notwithstanding the foregoing, the failure of any Loss or Expense there person hereto to give any notice described in this Section 8.3 shall be deducted not relieve any insurance recovery in respect thereof (and no right party hereto of subrogation its obligations hereunder, except to the extent such failure shall accrue hereunder to any insurer)have prejudiced such party.

Appears in 1 contract

Samples: Stock Purchase Agreement (Staar Surgical Company)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may If any of the Persons to be entitled to indemnification hereunder) indemnified under this Article VII (the “Indemnified Party”) shall give has suffered or incurred any Loss subject to indemnification under this Article VII, the party obligated to provide indemnification to such Indemnified Party shall so notify the Party responsible for providing indemnification therefor under this Agreement (the “IndemnitorIndemnifying Party”) a notice promptly in writing describing in reasonable detail such Loss, the facts giving rise to any claim basis for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) hereunder, the amount or estimated amount of such Loss, if known or reasonably capable of estimation, and the method of computation of the amount of such claimLoss, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon respect of which such claim Loss shall have occurred. If any action at law or suit in equity is based; provided that instituted by or against a third party with respect to which the Indemnified Party intends to seek indemnity under this Article VII, the Indemnified Party shall promptly notify the Indemnifying Party of such action or suit and tender to the Indemnifying Party the conduct or defense of such action or suit. A failure timely by the Indemnified Party to give such notice and to tender the conduct or defense of the action or suit in a timely manner pursuant to this Section 7.3 shall not relieve limit the Indemnitor obligation of its obligations hereunder the Indemnifying Party under this Article VII, except (i) to the extent it shall such Indemnifying Party is prejudiced thereby, (ii) to the extent expenses are incurred during the period in which notice was not provided and (iii) as provided by Section 7.5. Portions of this Exhibit, indicated by the mxxx “[***],” were omitted and have been prejudiced by such failurefiled separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. (b) After Except when a notice, report or other filing must be filed immediately pursuant to applicable Law, a Purchaser shall provide notice and an opportunity to comment to Seller before such Purchaser files any report, notification or filing with any Governmental Authority or third party in connection with an event that would be reasonably likely to result in a Loss subject to the giving indemnification provisions of any Claim Notice pursuant heretoSection 7.1. In the event such Purchaser is required to file a report, notification or filing immediately, such Purchaser shall provide simultaneous notice to Seller when it submits such report, notification or filing to the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedapplicable Governmental Authority. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Asset Purchase Agreement (Teligent, Inc.)

Notice of Claims. 8.5.1 If, at any time on or prior to the Claims Deadline, either the Company Indemnified Parties or the Parent Indemnified Parties, as the case may be (aeach, an "INDEMNITEE"), shall assert a claim against the other (the "INDEMNIFYING PARTY") Any Buyer Group Member or Seller Group Member seeking for indemnification hereunder (or believing pursuant to SECTION 8, such Indemnitee shall submit to the Indemnifying Party a written claim in good faith signed by an authorized officer of Parent or the Company or the requisite number of Shareholders under SECTION 8.7, as applicable, stating: (i) that an Indemnitee incurred or reasonably believes it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (Damages and the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation estimate of the amount of any such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the IndemnitorDamages; (ii) by a final judgment in reasonable detail, the facts alleged as the basis for such claim and the section or decree sections of any court of competent jurisdictionthis Agreement alleged as the basis or bases for the claim; or and (iii) by any other means if the Damages have actually been incurred, the number of additional shares of Parent Common Stock to which the Indemnified Party and Shareholders or Parent Shareholders (as defined in SECTION 8.6.2), as applicable, are entitled with respect to such Damages, which shall be determined as provided in SECTION 8.6 below. If the Indemnitor claim is for Damages which the Indemnitee reasonably believes may be incurred or are otherwise unliquidated, the written claim of the applicable Indemnitee shall agree. The judgment or decree state the reasonable estimate of such Damages, in which event a court claim shall be deemed final when to have been asserted under this SECTION 8 in the time for appealamount of such estimated Damages, but no distribution of additional shares of Parent Common Stock pursuant to SECTION 8.6 below shall be made until such Damages have actually been incurred. 8.5.2 In the event that any action, suit or proceeding is brought against any Indemnitee with respect to which an Indemnifying Party may have liability under SECTION 8, the Indemnifying Party shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Indemnitee; PROVIDED, HOWEVER, that an Indemnitee shall have the right to retain its own counsel, with fees and expenses paid by the Indemnifying Party, if anyrepresentation of the Indemnitee by counsel retained by Indemnifying Party would be inappropriate because of actual or potential differing interests between Indemnitee and the Indemnifying Party. In connection with any action, suit or proceeding subject to SECTION 8, the parties agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, suit or proceeding. No Indemnifying Party shall, without the prior written consent of the applicable Indemnitee, which consent shall have expired not be unreasonably withheld or delayed, settle or compromise any claim or demand if such settlement or compromise does not include an irrevocable and no appeal shall have been taken unconditional release of such Indemnitee for any liability arising out of such claim or when all appeals taken shall have been finally determineddemand. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Merger Agreement (Kiwa Bio-Tech Products Group Corp)

Notice of Claims. (a) Any Buyer Group Member Indemnified Party or Seller Group Member Equityholder Indemnified Party seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the "Indemnified Party") shall shall, within the relevant limitation period provided for in Section 8.1 and 8.2, give (i) in the case of indemnification sought by any Equityholder Indemnified Party, to Buyer, and (ii) in the case of indemnification sought by any Buyer Indemnified Party, to the party obligated to provide indemnification to such Indemnified Party Shareholder Representative, a written notice (the “Indemnitor”a "Claim Notice") a notice describing in reasonable detail the facts giving rise to any claim claims for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document certificate or instrument executed hereunder pursuant hereto or in connection herewith upon which such claim is based; provided provided, that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced; provided, further, that failure timely to give such written notice shall not relieve the Indemnitor party obligated to provide indemnification (the "Indemnitor") of its obligations hereunder hereunder, except to the extent it the Indemnitor shall have been materially prejudiced by such failure. (b) After An Indemnitor (acting through Buyer, in the case of indemnification sought by any Equityholder Indemnified Party, and acting through the Shareholder Representative, in the case of indemnification sought by a Buyer Indemnified Party) shall have 30 days after the giving of any Claim Notice pursuant hereto, hereto to (i) agree to the amount or method of indemnification determination set forth in the Claim Notice and to which an pay such amount to such Indemnified Party in immediately available funds or (ii) provide such Indemnified Party with written notice that it disagrees with the amount or method of determination set forth in the Claim Notice (the "Dispute Notice"). Within 15 days after the giving of any Dispute Notice, a representative of the Indemnitor and the Indemnified Party shall be entitled under this Article XI negotiate in good faith to resolve the matter. In the event that the controversy is not resolved within 30 days of the giving of the Dispute Notice, the Parties shall be determined: (i) by the written agreement between the Indemnified Party thereupon proceed to pursue any and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means all available remedies at law, subject to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).Section 10.7

Appears in 1 contract

Samples: Merger Agreement (Manhattan Associates Inc)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member A party seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the "Indemnified Party") shall give to the party obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided provided, that (i) a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced; and (ii) failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) After Any indemnification payment hereunder with respect to any Loss shall be an amount which is sufficient to compensate the giving of any Claim Notice pursuant hereto, Indemnified Party for the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: such Loss, after (i) taking into account all increases in federal, state, local, foreign or other Taxes payable by the written agreement between the Indemnified Party as a result of the receipt of such payment (by reason of such payment being included in income, resulting in a reduction of tax basis, or otherwise increasing such Taxes payable by the Indemnified Party at any time) and the Indemnitor; (ii) netting out against any such increases in Taxes payable by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and any tax benefit of the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when Loss, including, but not limited to, any resulting business expense deduction the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedIndemnified Party is entitled to claim on its Tax Return. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Stock Purchase Agreement (Coventry Health Care Inc)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may If any of the Persons to be entitled to indemnification hereunder) indemnified ---------------- under this Article VIII (the "Indemnified Party") has suffered or incurred any ----------------- Loss, the Indemnified Party shall give to so notify the party obligated to provide from whom indemnification to such Indemnified Party is sought (the “Indemnitor”"Indemnifying Party") a notice promptly in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss, ------------------ the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of the amount of such claimLoss, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document instrument or instrument executed hereunder or certificate delivered pursuant hereto in connection herewith upon respect of which such Loss shall have occurred. If any action at Law or suit in equity is instituted by or against a third party with respect to which the Indemnified Party intends to claim is based; provided that any Liability as a Loss under this Article VIII, the Indemnified Party shall promptly notify the Indemnifying Party of such action or suit and tender to the Indemnifying Party the defense of such action or suit. A failure timely by the Indemnified Party to give such notice and to tender the defense of the action or suit in a timely manner pursuant to this Section 8.3 shall not relieve limit the Indemnitor obligation of its obligations hereunder the Indemnifying Party under this Article VIII, except (i) to the extent it shall have been such Indemnifying Party is prejudiced thereby, (ii) to the extent expenses are incurred during the period in which notice was not provided, and (iii) as provided by such failureSection 8.5. (b) After the giving of Except when a notice, report or other filing must be filed immediately pursuant to Environmental Laws, Purchaser will provide notice and an opportunity to comment to Pfizer before Purchaser files any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment Required Governmental Report or decree of any court of competent jurisdiction; or (iii) by any other means report, notification or filing with any Governmental Authority or third party in connection with an event that would be reasonably likely to which result in a Loss subject to the Indemnified Party and indemnification provisions of this Article. In the Indemnitor shall agree. The judgment event Purchaser is required to file a Required Governmental Report or decree of a court shall be deemed final any other report, notification or filing immediately, Purchaser will provide simultaneous notice to Pfizer when it files the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedreport with the Governmental Authority. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Stock and Asset Purchase Agreement (Energizer Holdings Inc)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member party seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified PartyIndemnitee”) shall give promptly to the party obligated to provide indemnification to such Indemnified Party Indemnitee (the “Indemnitor”) (it being understood, however, that where the Sellers would otherwise be Indemnified Parties or Indemnitors, all references to such term as used in the procedural provisions of this Section 6.5 shall instead refer to the Company) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any the claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided provided, however, that the failure timely of any Indemnitee to give such notice the Claim Notice promptly as required by this Section 6.5(a) shall not relieve the Indemnitor of its obligations hereunder affect such Indemnitee’s rights under this ARTICLE VI except to the extent it shall have been prejudiced by such failurefailure is prejudicial to the rights and obligations of the Indemnitor. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party Indemnitee shall be entitled under this Article XI ARTICLE VI shall be determined: (i) by the written agreement between the Indemnified Party Indemnitee and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdictionbinding arbitration in accordance with Section 8.8; or (iii) by any other means to which the Indemnified Party Indemnitee and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, Indemnitee shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedthe burden of proof in establishing the amount of Losses suffered by it. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Asset Purchase Agreement (Dolan Co.)

Notice of Claims. (a) Any Buyer Group Member If, at any time on or Seller Group Member seeking prior to the Claims Deadline, any of the Company Indemnified Parties or Parent or Parent officer or director, as the case may be, shall assert a claim for indemnification hereunder (pursuant to Section 8.01 or believing 8.02, as the case may be, such claimant shall submit to the indemnifying party a written claim in good faith signed by an authorized officer of the claimant or other indemnified party, as applicable, stating (i) that a claimant incurred or reasonably believes it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (Damages and the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation estimate of the amount of any such claimDamages; (ii) in reasonable detail, the facts alleged as the basis for such claim and a reference to the provision section or sections of this Agreement alleged as the basis or any other agreementbases for the claim; and (iii) if the Damages have actually been incurred by a claimant, document or instrument executed hereunder or the number of additional shares of Parent Common Stock to which the Company Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in connection herewith upon which such Section 8.07 of this Agreement. If the claim is based; provided that failure timely for Damages which the claimant reasonably believes may be incurred or are otherwise un-liquidated, the written claim of the applicable claimant shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to give have been asserted under this Article VIII in the amount of such notice shall not relieve the Indemnitor estimated Damages, but no distribution of its obligations hereunder except additional shares of Parent Common Stock to the extent it Stockholders pursuant to Section 8.07 below shall be made until such Damages have actually been prejudiced by such failureincurred. (b) After In the giving of event that any Claim Notice pursuant heretoaction, the amount of indemnification suit or proceeding is brought against any Company Indemnified Party with respect to which an Parent may have liability under this Article VIII, Parent shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Company Indemnified Party; provided, however, that a Company Indemnified Party shall be entitled under this Article XI shall be determined: (i) have the right to retain its own counsel, with fees and expenses paid by Parent, if representation of the written agreement between the Company Indemnified Party by counsel retained by Parent would be inappropriate because of actual or potential differing interests between Parent and the Indemnitor; (ii) by a final judgment Company Indemnified Party. In connection with any action, suit or decree of any court of competent jurisdiction; or (iii) by any other means proceeding subject to which the Article VIII, Parent and each Company Indemnified Party agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, suit or proceeding. Parent shall not, without the Indemnitor prior written consent of the applicable Company Indemnified Party, which consent shall agreenot be unreasonably withheld or delayed, settle or compromise any claim or demand if such settlement or compromise does not include an irrevocable and unconditional release of such Company Indemnified Party for any liability arising out of such claim or demand. The judgment same provisions shall appropriately apply in the case where the Parent or decree a director or officer of the Parent makes a court shall be deemed final when claim for indemnification against the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedCompany pursuant to Section 8.02 of this Agreement. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Merger Agreement (Med-X, Inc.)

Notice of Claims. (a) Any If any Buyer Group Member (with respect to Section 10.1) or any ACME Group Member (with respect to Section 10.2) believes that it has suffered or incurred any Loss or incurred any Expense, such Buyer Group Member or Seller ACME Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or Member, as the case may be entitled to indemnification hereunder) (the "Indemnified Party”) "), shall give to so notify the party parties obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a notice promptly in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss or Expense, the amount or thereof, if known, and the method of computation of the amount of such claimLoss or Expense, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document or instrument executed hereunder or certificate delivered pursuant hereto in connection herewith upon respect of which such claim is basedLoss or Expense shall have occurred (a "Claim Notice"); provided provided, however, that failure timely the omission by the Indemnified Party to give such notice as provided herein shall not relieve the Indemnitor of its obligations hereunder indemnification obligation under this Article X except to the extent it that such omission results in a failure of actual notice to the Indemnitor and such Indemnitor is materially damaged as a result of such failure to give notice. If any action at law or suit in equity is instituted by or against a third Person with respect to which any Indemnified Party intends to claim any liability or expense as Loss or Expense under this Article X, such Indemnified Party shall have been prejudiced by promptly notify the Indemnitor of such failureaction or suit as specified in this Section 10.3. (ba) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI X shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have the burden of proof in establishing the amount of Losses and Expenses suffered by it. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Stock Purchase Agreement (Acme Communications Inc)

Notice of Claims. (a) Any Buyer Group Member Indemnitee or Seller Group Member Indemnitee seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall shall, within the relevant limitation period provided for in Section 9.1, give to the party obligated to provide indemnification to such Indemnified Party from whom identification is sought (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder writing (a “Claim Notice”) as promptly as practicable describing in reasonable detail any claim for indemnification hereunder and the facts giving rise to such claim for indemnification. The Indemnified Party shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the provision provision(s) of this Agreement pursuant to which such claim for indemnification is made including, if applicable, the representation or any other agreement, document or instrument executed hereunder or in connection herewith upon warranty with respect to which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failurebeing made. (b) After An Indemnitor shall have thirty (30) calendar days after the giving receipt of any Claim Notice pursuant hereto, the amount of indemnification hereto to which an Indemnified Party shall be entitled under this Article XI shall be determined: either (i) by agree that it has an indemnification obligation under Article IX, agree to the written agreement between amount or method of determination set forth in the Claim Notice and to pay such amount to such Indemnified Party and the Indemnitor; in immediately available funds or (ii) by provide such Indemnified Party with notice that it disagrees with the assertion that it has an indemnification obligation under Article IX or the amount or method of determination set forth in the Claim Notice. If the Indemnitor sends such a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which notice, then the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedattempt in good faith to resolve any disputed claim within thirty (30) calendar days thereafter. (c) In calculating Notwithstanding anything contained in this Agreement to the contrary, the provisions of this Section 9.4 shall not apply (i) in the case of Claims made by any Loss or Expense there Buyer Indemnitee prior to termination of the Escrow Agreement, which Claims shall be deducted any insurance recovery governed by the notice and resolution provisions set forth in respect thereof the Escrow Agreement; and (and no right ii) in the case of subrogation a Claim Notice provided in connection with a claim by a third Person made against an Indemnified Party, which Claims shall accrue hereunder to any insurer)be governed by Section 9.5.

Appears in 1 contract

Samples: Stock Purchase Agreement (Farmer Brothers Co)

Notice of Claims. Promptly, whenever any claim shall arise for indemnification hereunder, the party entitled to indemnification (the "Indemnified Person") shall promptly notify the other party (the "Indemnifying Person") of the claim, such notice (the "Claim Notice") to be in writing and to describe in reasonable detail (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder the Damages allegedly incurred, (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then knownb) the amount thereof, if known, (c) any complaints, subpoena or other documents served against the Indemnified Person in connection with such Damages, and (d) the method of computation of such Damages (but the amount of such claim, and a reference failure so to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice notify an Indemnifying Person shall not relieve the Indemnitor of its obligations hereunder it from any liability which it may have under this Section 10 except to the extent that it has been prejudiced in any material respect by such failure or from any liability which it might otherwise have). The Indemnifying Person shall have been prejudiced 30 business days following its receipt of an any Claim Notice either to (a) acquiesce in such claim by giving such failure. Indemnified Person written notice of such acquiescence or (b) After object to the claim by giving the Indemnified Person written notice of any the objection. If the Indemnifying Person do not object to the Claim Notice pursuant heretowithin such 30 business day period, the amount of indemnification to which an Indemnified Party Person shall be entitled under this Article XI to be indemnified for all losses reasonably and proximately incurred by such Indemnified Person in respect of such claim. If the Sellers duly object within such 30-day period, the dispute shall be determined: (i) by the written agreement between the resolved in accordance with Section 12. An Indemnified Party and the Indemnitor; (ii) Person shall not settle or compromise any claim by a final judgment or decree third party for which such Indemnified Person is entitled to indemnification hereunder without the prior written consent (not to be unreasonably withheld) of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedIndemnifying Person. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Asset Purchase Agreement (California Amplifier Inc)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may If any of the Persons to be entitled to indemnification hereunder) indemnified under this Article VIII (the "Indemnified Party") has suffered or incurred any Loss, the Indemnified Party shall give to so notify the party obligated to provide from whom indemnification to such Indemnified Party is sought (the “Indemnitor”"Indemnifying Party") a notice promptly in writing describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) Loss, the amount or estimated amount thereof, if known or reasonably capable 147 of estimation, and the method of computation of the amount of such claimLoss, all with reasonable particularity and containing a reference to the provision provisions of this Agreement or any other agreement, document instrument or instrument executed hereunder or certificate delivered pursuant hereto in connection herewith upon respect of which such Loss shall have occurred. If any action at law or suit in equity is instituted by or against a third party with respect to which the Indemnified Party intends to claim is based; provided that any liability or expense as a Loss under this Article VIII, the Indemnified Party shall promptly notify the Indemnifying Party of such action or suit and tender the Indemnified Party the defense of such action or suit. A failure timely to give such notice and to tender the defense of the action or suit in a timely manner pursuant to this Section 8.3 shall not relieve limit the Indemnitor obligation of its obligations hereunder the responsible Person under this Article VIII, except (i) to the extent such Indemnifying Party is prejudiced thereby, (ii) except to the extent it shall have been prejudiced expenses are incurred during the period in which notice was not provided, and (iii) except as provided by such failureSection 8.5 below. (b) After Except when a notice, report or other filing must be filed immediately pursuant to Environmental Laws, Purchaser will provide a reasonable opportunity under the giving of circumstances to comment to Pfizer before Purchaser files 148 with respect to any Claim Notice pursuant hereto, the amount of indemnification Required Governmental Report it intends to file in connection with an event which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when at the time for appealof filing appears reasonably likely to result in a Loss subject to the indemnification provisions of this Article. In the event Purchaser is required to file such Required Governmental Report, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedPurchaser will provide copies to Pfizer within a reasonable period of time under the circumstances. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Stock and Asset Purchase Agreement (Pfizer Inc)

Notice of Claims. (a) Any Buyer Investor Group Member or Seller Smitx & Xephew Group Member (the "Indemnified Party") seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) under this Article XII shall give to the party obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a notice (an "Environmental Claim Notice") describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Environmental Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided provided, that an Environmental Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced; provided, that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it of the Indemnitor shall have been prejudiced by such failurefailure (it being understood that this proviso does not modify or otherwise affect the time periods specified in Section 12.3). (b) In calculating any Environmental Loss or Environmental Expense there shall be deducted (i) any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer) and (ii) the amount of any tax benefit to the Indemnified Party (or any of its Affiliates) with respect to such Environmental Loss or Environmental Expense (after giving effect to the tax effect of receipt of the indemnification payments). (c) After the giving of any Environmental Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI XII shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have the burden of proof in establishing the amount of Environmental Loss and Environmental Expense suffered by it. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Recapitalization Agreement (Donjoy LLC)

Notice of Claims. (a) Any Buyer Group Member If, at any time on or Seller Group Member seeking prior to the Claims Deadline, GVI Indemnified Parties shall assert a claim for indemnification hereunder (or believing pursuant to Section 9.1, such GVI Indemnified Parties shall submit to Purchaser a written claim in good faith signed by an authorized officer of GVI or the requisite number of Stockholders under Section 9.7, as applicable, stating: (i) that a GVI Indemnified Party incurred or reasonably believes it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (Damages and the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation estimate of the amount of any such claimDamages (not to exceed $500,000); (ii) in reasonable detail, the facts alleged as the basis for such claim and a reference to the provision section or sections of this Agreement alleged as the basis or any other agreementbases for the claim; and (iii) if the Damages have actually been incurred, document or instrument executed hereunder or the number of additional shares of Common Stock to which the Stockholders are entitled with respect to such Damages, which shall be determined as provided in connection herewith upon which such Section 9.6 below. If the claim is based; provided that failure timely for Damages which the GVI Indemnified Parties reasonably believe may be incurred or are otherwise unliquidated, the written claim of the applicable GVI Indemnified Parties shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to give have been asserted under this Article 9 in the amount of such notice shall not relieve the Indemnitor estimated Damages, but no distribution of its obligations hereunder except additional shares of Common Stock to the extent it Stockholders pursuant to Section 9.6 below shall be made until such Damages have actually been prejudiced by such failureincurred. (b) After In the giving of event that any Claim Notice pursuant heretoaction, suit or proceeding is brought against any GVI Indemnified Party with respect to which Purchaser may have liability under Article 9, the amount Purchaser shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of indemnification to which an the GVI Indemnified Party; provided, however, that a GVI Indemnified Party shall be entitled under this Article XI shall be determined: (i) have the right to retain its own counsel, with fees and expenses paid by Purchaser, if representation of the written agreement between the GVI Indemnified Party by counsel retained by Purchaser would be inappropriate because of actual or potential differing interests between Purchaser and the Indemnitor; (ii) by a final judgment GVI Indemnifying Party. In connection with any action, suit or decree of any court of competent jurisdiction; or (iii) by any other means proceeding subject to which the Article 9, Purchaser and each GVI Indemnified Party agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, suit or proceeding. Purchaser shall not, without the Indemnitor prior written consent of the applicable GVI Indemnified Parties, which consent shall agree. The judgment not be unreasonably withheld or decree delayed, settle or compromise any claim or demand if such settlement or compromise does not include an irrevocable and unconditional release of a court shall be deemed final when the time such GVI Indemnified Parties for appeal, if any, shall have expired and no appeal shall have been taken any liability arising out of such claim or when all appeals taken shall have been finally determineddemand. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Merger Agreement (Thinking Tools Inc)

Notice of Claims. (aEach party indemnified under Section 6(a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunderSection 6(b) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or shall, promptly after receipt of notice of the commencement of any other agreementaction against such indemnified party in respect of which indemnity may be sought, document or instrument executed hereunder or notify the indemnifying party in connection herewith upon which writing of the commencement thereof, enclosing a copy of all papers served on such claim is based; provided that failure timely indemnified party. The omission of any indemnified party so to give notify an indemnifying party of any such notice action shall not relieve the Indemnitor indemnifying party from any liability in respect of its obligations hereunder except such action which it may have to such indemnified party on account of the indemnity agreement contained in Section 6(a) or Section 6(b) of this Agreement, unless the indemnifying party was prejudiced by such omission, and in no event shall relieve the indemnifying party from any other liability which it may have to such indemnified party. In case any such action shall be brought against any indemnified party and it shall notify an indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, that if any indemnified party or parties reasonably determine that there may be legal defenses available to such indemnified party that are different from or in addition to those available to such indemnifying party or that representation of such indemnifying party and any indemnified party by the same counsel would present a conflict of interest, then such indemnifying party shall have been prejudiced by not be entitled to assume such failure. (b) After defense. If an indemnifying party is not entitled to assume the giving defense of any Claim Notice pursuant heretosuch action as a result of the proviso to the preceding sentence, the amount of indemnification to which an Indemnified Party counsel for such indemnifying party shall be entitled under this Article XI to conduct the defense of such indemnifying party and counsel for the indemnified party shall be determined: (i) entitled to conduct the defense of such indemnified party or parties. If an indemnifying party assumes the defense of an action in accordance with and as permitted by the provisions of this paragraph, such indemnifying party shall not be liable to such indemnified party under Section 6(a) or Section 6(b) of this Agreement for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. In no event shall the indemnifying party be liable for the fees and expenses of more than one counsel (in addition to local counsel) separate from its own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. The indemnifying party shall not be liable for any settlement of any action or proceeding effected without its written agreement between the Indemnified Party and the Indemnitor; (ii) by consent, but if settled with its written consent, or if there be a final judgment for the plaintiff in any such action or decree proceeding, the indemnifying party shall indemnify and hold harmless the indemnified persons from and against any loss or liability by reason of any court of competent jurisdiction; the settlement or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedjudgment. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Registration Rights Agreement (Qwest Communications International Inc)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses If a Claim is asserted against a Person for which it is a Party may have an obligation of indemnity and defense under this Article VIII or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the other provision of this Agreement or any (an “Indemnity Claim”), the indemnified Person shall give the indemnifying Party prompt written notice of the underlying Claim setting forth the particulars associated with the underlying Claim (including a copy of the written underlying Third Party Claim, if any) as then known by the indemnified Person (“Indemnity Claim Notice”). For Indemnity Claims with respect to which the threshold limitations in Section 8.7 apply, an Indemnity Claim shall be deemed to have been made (subject to the other agreementprovisions of Section 8.7) upon the indemnified Person’s providing an initial Indemnity Claim Notice to the indemnifying Party stating that the Claim underlying the Indemnity Claim could reasonably be expected in good faith to exceed the applicable threshold amount. The indemnified Person shall, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it practicable, give an Indemnity Claim Notice within such time as shall have been prejudiced allow the indemnifying Party a reasonable period in which to evaluate and timely respond to the underlying Claim; provided, however, that (a) failure to do so shall not affect an indemnified Person’s rights hereunder except for, and only to the extent of, any incremental costs incurred by such failure. the indemnified Person with respect to the Indemnity Claim resulting from the failure to give notice; (b) After the giving foregoing shall not extend the time periods set forth in Section 8.7 (if applicable to the Claim), but if an Indemnity Claim Notice is given to an indemnifying Party within the applicable time period (if any) with respect to such Claim set forth in Section 8.7, such Indemnity Claim Notice shall be effective, subject to the other provisions of Article VIII, as to costs and expenses incurred or suffered after the expiration of any such time period, with respect to the matter generally described in such Indemnity Claim Notice; and (c), without extending the time periods set forth in Section 8.7, the indemnified Person shall not be required to provide an Indemnity Claim Notice pursuant hereto, unless and until such Person believes that the amount of indemnification Claim underlying the Indemnity Claim could reasonably be expected in good faith to which an Indemnified Party shall be entitled under this Article XI shall be determined: exceed the applicable threshold (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined) set forth in Section 8.7. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Purchase and Sale Agreement (Eagle Rock Energy Partners L P)

Notice of Claims. (a) Any Buyer Group Member Indemnitee or Seller Group Member Indemnitee seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall shall, within the relevant limitation period provided for in Section 9.1, give to the party obligated to provide indemnification to such Indemnified Party from whom identification is sought (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder writing (a “Claim Notice”) as promptly as practicable and describing in reasonable detail any claim for indemnification hereunder and, to the extent known to the Indemnified Party, the facts giving rise to such claim for indemnification. The Indemnified Party shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the provision provision(s) of this Agreement pursuant to which such claim for indemnification is made including, if applicable, the representation or any other agreement, document or instrument executed hereunder or in connection herewith upon warranty with respect to which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failurebeing made. (b) After The Buyer or Seller, as applicable, shall have thirty (30) calendar days after the giving receipt of any Claim Notice pursuant hereto, the amount of indemnification hereto to which an Indemnified Party shall be entitled under this Article XI shall be determined: either (i) by agree that the written agreement between applicable Indemnitor has an indemnification obligation under Article IX, agree to the amount or method of determination set forth in the Claim Notice and to pay such amount to such Indemnified Party in immediately available funds or (ii) provide such Indemnified Party with notice that it disagrees with the assertion that the Indemnitor has an indemnification obligation under Article IX or the amount or method of determination set forth in the Claim Notice. If the Buyer or the Seller, as applicable, sends such a notice, then the Indemnified Party and the Indemnitor; (ii) by a final judgment Buyer or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appealSeller, if anyas applicable, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedattempt in good faith to resolve any disputed claim within thirty (30) calendar days thereafter. (c) In calculating any Loss or Expense there Notwithstanding the foregoing, the provisions of this Section 9.4 shall be deducted any insurance recovery not apply in respect thereof (and no right the case of subrogation shall accrue hereunder to any insurer)a Claim Notice provided in connection with a claim by a third Person made against an Indemnified Party, which claims are governed by Section 9.5.

Appears in 1 contract

Samples: Asset Purchase Agreement (Ari Network Services Inc /Wi)

Notice of Claims. (a) Any Buyer Group Member or Seller Group ---------------- Member (the "Indemnified Party") seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give ----------------- promptly to the party obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a written notice (a "Claim Notice") describing in ---------- ------------ reasonable detail the facts giving rise to any the claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that . The failure timely of any Indemnified Party to give such notice the Claim Notice promptly as required by this Section 11.4 shall not relieve affect such Indemnified Party's rights ------------ under this Article XI. ---------- (b) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer). Any indemnity payment hereunder with respect to any Loss or Expense shall be calculated on an "After-Tax Basis," which shall mean an amount which is sufficient to compensate the Indemnitor Indemnified Party for the event giving rise to such Loss or Expense (the "Indemnified Event"), determined after ----------------- taking into account (1) all increases in domestic or foreign, federal, state, local or other Taxes (including estimated Taxes) payable by the Indemnified Party as a result of its obligations hereunder except the receipt of the indemnity payment (as a result of the indemnity payment being included in income, resulting in a reduction of tax basis, or otherwise); provided, however, that Buyer and Seller agree to report, -------- ------- to the extent it permitted by law, each payment made in respect of a Loss or Expense as an adjustment to the Purchase Price for income Tax purposes, (2) all increases in domestic or foreign, federal, state, local county, municipal and other Taxes (including estimated Taxes) payable by the Indemnified Party for all affected taxable years as a result of the Indemnified Event, and (3) all reductions in domestic or foreign, federal, state, local and other Taxes (including estimated Taxes) payable by the Indemnified Party as a result of the Indemnified Event. All calculations shall have be made using reasonable assumptions agreed upon by Buyer and Seller and, in the case of any present value calculations, shall be made using the applicable federal rate in effect at the time of the Indemnified Event (based on the Federal mid-term rate) using semi- annual compounding. In the event that any indemnity payment is reduced by virtue of having been prejudiced by treated as an adjustment to the Purchase Price and such failuretreatment is subsequently disallowed for income tax purposes, the indemnity payment shall be increased to the extent necessary to take account of its creating taxable income to the Indemnitee without regard to any time limit otherwise applicable under the terms of this Agreement. (bc) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the ---------- Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have the burden of proof in establishing the amount of Losses and Expenses suffered by it. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Stock Purchase Agreement (McGraw-Hill Companies Inc)

Notice of Claims. Any Indemnified Party that proposes to assert a right to be indemnified under this Article V shall notify Exelixis or Holdings, as applicable (athe “Indemnifying Party”), promptly after receipt of notice of commencement of any action, suit or proceeding against such Indemnified Party (an “Indemnified Proceeding”) Any Buyer Group Member in respect of which a claim is to be made under this Article V, or Seller Group Member seeking indemnification hereunder the incurrence or realization of any Loss in respect of which a claim is to be made under this Article V, of the commencement of such Indemnified Proceeding or of such incurrence or realization, enclosing a copy of all relevant documents, including all papers served and claims made, but the omission to so notify the applicable Indemnifying Party promptly of any such Indemnified Proceeding or incurrence or realization shall not relieve (or believing in good faith x) such Indemnifying Party from any liability that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give to the party obligated to provide indemnification have to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise under this Article V or otherwise, except, as to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (Indemnifying Party’s liability under this Article V, to the extent then known) the amount or the method of computation of the amount of such claimextent, and a reference but only to the provision of this Agreement or any other agreementextent, document or instrument executed hereunder or in connection herewith upon which that such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it Indemnifying Party shall have been prejudiced by such failure. omission, or (by) After the giving of any Claim Notice pursuant hereto, the amount of indemnification other indemnitor from liability that it may have to which an any Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agreeOperative Documents. The judgment or decree of a court shall be deemed final when the time for appeal[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, if anyMARKED BY BRACKETS, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedHAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Warrant Purchase Agreement (Exelixis Inc)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member seeking indemnification hereunder If, during the Escrow Term, CalComp shall deliver to the Escrow Agent and the Representative written notice of a claim (or believing as described in good faith that it may suffer or incur Losses or Expenses for Article VIII of the Reorganization Agreement) against which it CalComp is or may be entitled to indemnification hereunderunder Article VIII of the Reorganization Agreement and setting forth the applicable information called for by Section 3(b) hereof ("Notice of Claims"), the “Indemnified Party”) shall give Escrow Agent shall, notwithstanding the expiration of the Escrow Term, continue to hold a number of shares of Escrow Stock in the Escrow Account equal to the party obligated aggregate amount of claims referred to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice of Claims and any other unresolved Notice or Notices of Claims (to the extent then known) or if the amount or the method referred to in such Notice(s) of computation of Claims is greater than the amount of held in the Escrow Account, then the Escrow Agent shall continue to hold the entire amount in the Escrow Account) until such claim, and a reference claims are resolved pursuant to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failureSection 4 hereof. (b) After Any Notice of Claims shall contain the giving of any Claim Notice pursuant hereto, following information to the amount of indemnification extent it is reasonably available to which an Indemnified Party shall be entitled under this Article XI shall be determined: CalComp: (i) by The amount of the written agreement between the Indemnified Party and the Indemnitoralleged loss or liability against which CalComp is indemnified; and (ii) by a final judgment A brief description of the circumstances giving rise to the alleged loss or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedliability. (c) In calculating The Escrow Agent shall not transfer any Loss or Expense there shall be deducted any insurance recovery of the Escrow Stock held in respect thereof (and no right the Escrow Account to CalComp pursuant to a Notice of subrogation shall accrue hereunder to any insurer)Claims until such Notice of Claims has been resolved in accordance with Section 4 below.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Calcomp Technology Inc)

Notice of Claims. If a Claim is asserted against a Person for which a Party may have Indemnity Obligations under this Agreement (an “Indemnity Claim”), the indemnified Person shall give the indemnifying Party written notice of the underlying Claim setting forth the particulars associated with the underlying Claim (including a copy of the written underlying Claim, if any) as then known by the indemnified Person (“Indemnity Claim Notice”). For Indemnity Claims with respect to which the Individual Indemnity Threshold in Section 11.4 applies, an Indemnity Claim shall be deemed to have been made (subject to the provisions of Section 11.4) upon the indemnified Person’s providing an initial Indemnity Claim Notice to the indemnifying Party stating that the Claim underlying the Indemnity Claim could reasonably be expected to exceed the Individual Indemnity Threshold. The indemnified Person shall, to the extent practicable, give an Indemnity Claim Notice within such time as will allow the indemnifying Party a reasonable period in which to evaluate and timely respond to the underlying Claim; provided, (a) Any Buyer Group Member or Seller Group Member seeking indemnification failure to do so shall not affect an indemnified Person’s rights hereunder (or believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice describing in reasonable detail the facts giving rise to any claim for indemnification hereunder (a “Claim Notice”) as promptly as practicable except for, and shall include in such Claim Notice (only to the extent then known) of, any increase in the amount or the method of computation cost of the amount of such claim, and a reference to Indemnity Claim resulting from the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; provided that failure timely to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. notice; and (b) After the giving foregoing shall not extend the time period set forth in Section 11.4 (if applicable to the Claim), but if an Indemnity Claim Notice is given to an indemnifying Party within the applicable time period (if any) with respect to such Claim set forth in Section 11.4, such Indemnity Claim Notice shall be effective, subject to the other limitations in Section 11.4 (if applicable), as to costs and expenses incurred or suffered after the expiration of any such time period, with respect to the matter described in such Indemnity Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determinedNotice. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Purchase and Sale Agreement (EP Energy LLC)

Notice of Claims. (a) Any Buyer Group Member or Seller Group Member ---------------- (the "Indemnified Party") seeking indemnification hereunder (with respect to a ----------------- Claim, or believing in good faith that it may suffer with respect to a Loss or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) (the “Indemnified Party”) Expense, shall give to the party obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a notice ---------- (a "Claim Notice") describing in reasonable detail the Claim or the facts giving ------------ rise to any claim the Loss or Expense or other entitlement for indemnification hereunder (a “Claim Notice”) as promptly as practicable and shall include in such Claim Notice (to the extent if then known) the amount or the method of computation of the amount of such claimLoss or Expense, and a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim right to indemnification is based; provided, however, that a Claim Notice in respect of -------- ------- any Claim as to which indemnification will be sought shall be given promptly after any action or suit is commenced; provided further that failure timely to give -------- ------- such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) . After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI 8 shall be determined: (i) by the written agreement between the --------- Indemnified Party and the Indemnitor; (ii) by a final judgment or decree final, binding and non- appealable order of any a court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, Indemnified Party shall have expired the burden of proof in establishing the amount of Loss and no appeal shall have been taken or when all appeals taken shall have been finally determinedExpense suffered by it. (c) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer).

Appears in 1 contract

Samples: Asset Purchase Agreement (Global Sports Inc)