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Common use of Notice of Claims Clause in Contracts

Notice of Claims. (a) If, at any time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demand.

Appears in 2 contracts

Samples: Asset Purchase Agreement, Asset Purchase Agreement (Bering Exploration, Inc.)

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Notice of Claims. (a) If, at any time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert If a claim for indemnification pursuant Losses (a “Claim”) is to Section 5.1be made by Parent that does not involve a third party, such Breitling Indemnified Party Parent shall submit give written notice (a “Claim Notice”) to the Company a written claim in good faith signed by an authorized officer of Breitling VSee or other Breitling Indemnified PartyiDoc, as applicable, stating and the Escrow Agent (in such capacity, the “Indemnifying Party”), which Claim Notice shall describe the claim for indemnification hereunder and specify in reasonable detail, to the extent known and reasonably quantifiable at such time, the amount or estimated amount of the Claim, which statement or estimate shall not be binding and may be revised, amended or modified upon notice to the Indemnifying Party. The failure of Parent to give timely notice of a Claim hereunder shall not affect Parent’s rights to indemnification hereunder. If the applicable Indemnifying Party disputes in writing its liability with respect to such Claim or the estimated amount of such Losses pursuant to this Section 8.4 within forty-five (45) days following delivery of such Claim Notice, the parties shall attempt in good faith to resolve such dispute; provided, that, if such dispute has not been resolved within thirty (30) days following notice of such dispute of the Claim Notice, then the amount of indemnification to which Parent shall be entitled under this Article 8 shall be determined by: (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages the written agreement between Parent and the reasonable estimate Indemnifying Party through the use of good faith efforts to resolve such dispute; (ii) a final judgment or decree of any Governmental Entity of competent jurisdiction; or (iii) any other means to which Parent and the Indemnifying Party shall agree. The judgment or decree of a Governmental Entity 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. Following such determination of the amount of any such Damages; (ii) in reasonable detailindemnification, the facts alleged as the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If applicable Indemnifying Party notifies Parent that it does not dispute the claim is for Damages which described in the Breitling Indemnified Parties reasonably believe may be incurred Claim Notice or are otherwise unfails to respond within forty-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate five (45) days following receipt of such DamagesClaim Notice, in which event a claim shall be deemed to have been asserted under this Article V in such determination of the amount of such estimated Damagesindemnification or the Losses identified in the Claim Notice, but no distribution as applicable, will be conclusively deemed a liability of additional Common Shares the Indemnifying Party under Section 8.2(a) or Section 8.2(b), as applicable, and Parent shall forward to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until Indemnifying Party written notice of any such Damages have actually been incurred. (b) In sums due and owing by the event that any action, suit or proceeding is brought against any Breitling Indemnified Indemnifying Party with respect to which and the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Indemnifying Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling Indemnified Party agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense pay all of such action, suit or proceeding. The Company shall not, without the prior written consent sums so due and owing within five (5) Business Days by wire transfer of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandimmediately available funds.

Appears in 2 contracts

Samples: Business Combination Agreement (Digital Health Acquisition Corp.), Business Combination Agreement (Digital Health Acquisition Corp.)

Notice of Claims. (a) IfIn the event any Indemnified Person wishes to pursue its, at any time on his or prior her rights to indemnification under this Article 9, if the matter does not involve a Third Party Claim under Section 9.5 hereof, the Indemnified Person shall give written notice thereof to the Indemnifying Party stating that an indemnification Claim or Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.19.2 or any other provision of this Agreement is being made, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as describing the basis for such claim Claim with reasonable specificity and specifying in reasonable detail the Losses in respect of such Claim (provided that the Indemnified Person shall not be bound by any estimate of Losses made in good faith and contained in such description). Within thirty (30) days from the receipt of such notice, the Indemnifying Party shall provide a written notice to such Indemnified Person indicating whether the Indemnifying Party objects to such Claim. If no such objection notice is received by such Indemnified Person within such thirty (30) day period, the Indemnifying Party waives any objection to such Indemnified Person being indemnified for such Claim pursuant to this Agreement under this Article 9. If such notice of objection is provided within such period, the Indemnifying Party and the section Indemnified Person or sections its, his or her representative(s) shall then attempt in good faith for thirty (30) days to agree upon the rights of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to respective parties with respect to each of such Damages, which shall be determined as provided in Section 5.5 belowClaims. If no such resolution can be reached after good faith negotiation, such Indemnified Person or the claim is for Damages which Indemnifying Party may institute proceedings in a court of competent jurisdiction (in accordance with Section 11.8) to resolve any such dispute, and each such Indemnified Person and the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidatedIndemnifying Party, subject to Section 6.13, shall seek to resolve such dispute in as expeditious a manner as practicable. In the case of any such proceeding, the written claim of Indemnified Person and the applicable Breitling Indemnified Indemnifying Party shall state each be responsible for the reasonable estimate payment of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandexpenses.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Medicis Pharmaceutical Corp), Stock Purchase Agreement (Solta Medical Inc)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Seller Group Member seeking indemnification hereunder (the “Indemnified Party”) shall give promptly to the Claims Deadline, any of one or more Parties obligated to provide indemnification to such Indemnified Party (the Breitling Indemnified Parties shall assert “Indemnitor”) hereunder a notice describing in reasonable detail the facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurredany other agreement, the number of additional Common Shares to document or instrument executed hereunder or in connection herewith upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event based (a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party“Claim Notice”); provided, however, that a Breitling the failure of any Indemnified Party to give the Claim Notice promptly as required by this Section 9.3(a) shall not affect such Indemnified Party’s rights under this Section 9 except to the extent such failure is actually prejudicial to the Indemnitor’s rights and obligations hereunder. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid be entitled under this Section 9 shall be determined: (i) by the Companywritten 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 representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual any, shall have expired and no appeal shall have been taken or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company when all appeals taken shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandhave been finally determined.

Appears in 2 contracts

Samples: Share Purchase Agreement, Share Purchase Agreement (Sra International Inc)

Notice of Claims. (a) If, at any time on Any Company Group Member or prior IPS Group Member (the "Indemnified Party") seeking indemnification hereunder shall give promptly to the Claims Deadline, any of party obligated to provide indemnification to such Indemnified Party (the Breitling Indemnified Parties shall assert "Indemnitor") a notice (a "Claim Notice") describing in reasonable detail the facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and a reference to the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurredany other agreement, the number of additional Common Shares to document or instrument executed hereunder or in connection herewith upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Partybased; provided, however, that a Breitling 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 in accordance with Section 7.4. (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 (and increased to take into account any Taxes payable by the recipient of any indemnity payment hereunder as a result of the receipt of such payment). (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 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 right to retain its own counsel, with fees burden of proof in establishing the amount of Losses and expenses paid Expenses suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 2 contracts

Samples: Contribution Agreement (Moneygram Payment Systems Inc), Contribution Agreement (Moneygram Payment Systems Inc)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Seller Group Member seeking indemnification hereunder (the “Indemnified Party”) shall give promptly to the Claims Deadline, any of party obligated to provide indemnification to such Indemnified Party (the Breitling Indemnified Parties shall assert “Indemnitor”) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurredany other agreement, the number of additional Common Shares to document or instrument executed hereunder or in connection herewith upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Partybased; provided, however, that the failure of any Indemnified Party to give the Claim Notice promptly as required by this Section 9.4(a) shall not affect such Indemnified Party’s rights under this Section 9.4(a), except to the extent that such failure is actually 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 shall be entitled under this Section 9 shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a Breitling final judgment or decree of any court of competent jurisdiction in an action between the Indemnified Party and the Indemnitor; 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 right burden of proof in establishing the amount of Losses suffered by it. All amounts due to retain its own counsel, with fees and expenses the Indemnified Party as so finally determined shall be paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling Indemnified Party agree to render to each other wire transfer within thirty (30) days after such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, suit or proceeding. The Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandfinal determination.

Appears in 2 contracts

Samples: Stock and Asset Purchase Agreement (Gencorp Inc), Stock and Asset Purchase Agreement (Gencorp Inc)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Seller Group Member (the "Indemnified Party") seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which indemnification will be sought shall be determined as given promptly after the action or suit is commenced; provided in Section 5.5 below. If further that failure to give such notice shall not relieve the claim is for Damages which Indemnitor of its obligations hereunder except to the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party extent it shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article XI shall be finally determined: (i) by the written agreement between the Indemnified Party and the Indemnitor or (ii) pursuant to the provisions of Section 11.14; or (iii) by any other means to which the Company may have liability under this Article V, Indemnified Party and the Company Indemnitor shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling agree. The Indemnified Party shall have the right to retain its own counselburden 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, with fees and expenses paid whether such recovery is made by the CompanyParent, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual Seller, Buyer Parent or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandBuyer.

Appears in 2 contracts

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

Notice of Claims. (a) IfAny Buyer Group Member or Seller Group Member (each, at any time on or prior an "Indemnified Party") seeking indemnification hereunder shall give to the Claims Deadlineparty obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a written notice (a "Claim Notice") promptly after the Indemnified Party has knowledge of any claim which the Indemnified Party has determined has given or could give rise to a right of indemnification hereunder, any of in each case describing in reasonable detail the Breitling Indemnified Parties shall assert a facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged as or the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to Accounts Receivable Purchase Agreement upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Partybased; provided, however, that a Breitling 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. (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. The Indemnified Party shall have the right burden of proof in establishing the amount of Losses and Expenses suffered by it. (c) No Claim Notice may be given in respect of a Loss or Expense incurred by a Buyer Group Member in connection with or arising from a breach of any representation or warranty of Seller set forth in Section 5.7(d) or the covenant set forth in the last sentence of Section 8.2(a)(i) earlier than the time such breach causes such Buyer Group Member to retain its own counselactually pay incremental Taxes, with fees and expenses paid by no Claim Notice shall be made in respect of anticipated incremental Tax payments. With respect to such breach, the Companyamount of a Buyer Group Member's Loss or Expense in respect of a payment of a Tax shall equal (x) the excess, if representation any, of the Breitling Indemnified Party by counsel retained by amount of such Tax payment (assuming utilization of all available losses, credits and similar Tax attributes) over the Company amount such Tax payment would have been if there had been no breach of any representation or warranty of Seller set forth in Section 5.7(d) or the covenant set forth in the last sentence of Section 8.2(a)(i), (y) discounted at a rate of 7% per annum (compounded annually) from the date of such payment of Tax to the Closing Date. Seller's obligation to indemnify and hold harmless a Buyer Group Member in respect of such amount of Loss or Expense shall be inappropriate because subject to the Aggregate Limits in accordance with the terms of actual or potential differing interests between the Company Section 11.1(a) and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company provisions of clauses (1) and each Breitling Indemnified Party agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense (3) of such action, suit or proceeding. The Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandSection 11.5(a).

Appears in 2 contracts

Samples: Stock Purchase Agreement (Specialty Foods Acquisition Corp), Stock Purchase Agreement (Specialty Foods Corp)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Shareholder ---------------- Group Member (the "Indemnified Party") seeking indemnification hereunder shall ----------------- give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of such claim, and a reference to the provision of this Agreement upon which such claim is based; provided, however, that: (i) a -------- ------- Claim Notice in respect of any such Damagesaction 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) in reasonable detail, failure to give such notice shall not relieve the facts alleged as Indemnitor of its obligations hereunder except to the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which extent it shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of materially prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) Any payment by the rightBuyer or the Shareholders under Article IX or ---------- this Section 10.3 shall be calculated on an "After-Tax Basis," which shall mean ------------ --------------- an amount that is sufficient to compensate the Indemnified Party for the event or occurrence giving rise to such payment (the "Indemnified Event"), at its cost and expense, to defend such action, suit or proceeding in determined ----------------- after taking into account (i) all Tax increases payable by the name and on behalf Indemnified Party as a result of the Breitling Indemnified Partyreceipt of the indemnity payment (as a result of the indemnity payment being included in income, or otherwise); provided, however, -------- ------- that a Breitling the -49- Buyer and the Shareholders agree to report each such payment as an adjustment to the Purchase Price unless the Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, determines in good faith that such reporting position is incorrect (it being understood that if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual any such reporting position is later disallowed in any administrative or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article Vcourt proceeding, the Company and each Breitling 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 Company Indemnitor shall not, without indemnify the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out the effects of such claim disallowance, and it being further understood that this parenthetical clause shall remain in effect without limitation as to time), (ii) all Tax increases payable by the Indemnified Party for all affected taxable years or demandperiods as a result of the Indemnified Event, and (iii) all reductions in Tax payable by the Indemnified Party or any of its Affiliates for all affected taxable years or periods as a result of the Indemnified Event. All calculations shall be made using reasonable assumptions agreed upon by the Buyer and the Shareholders and, in the case of any present-value calculations, shall utilize the applicable federal mid-term rate with annual compounding in effect at the time of the Indemnified Event, plus 2 percentage points.

Appears in 1 contract

Samples: Stock Purchase Agreement (Aptargroup Inc)

Notice of Claims. (ai) IfIf Buyer on the one hand, at or Seller or Shareholder on the other, believes that it (or the Buyer Indemnified Persons or Seller Indemnified Persons, respectively) has suffered or incurred any time on Loss or prior Expense for which indemnification is provided hereunder, such party shall so notify the other promptly in writing describing such Loss or Expense, the amounts thereof, if known, and the method of computation of such Loss or Expense, all with reasonable particularity and containing a reference to the Claims Deadlineprovisions of this Agreement or other agreement, instrument, or certificate delivered pursuant hereto in 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 any of the Breitling Indemnified Parties indemnified persons intends to claim any liability or expense as a Loss or Expense under this Section (85), any such indemnified person shall assert a claim for indemnification pursuant promptly notify the indemnifying party of such action or suit. Should the indemnified party fail to Section 5.1promptly notify the indemnifying party of such action or suit, and such Breitling Indemnified Party shall submit to failure materially prejudices the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate ability of the amount of any indemnifying party to defend such Damages; (ii) in reasonable detailaction or suit, the facts alleged as the basis for such claim and the section or sections indemnifying party shall be absolved of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to its indemnity obligation with respect to such Damagesaction or suit to the extent of any such prejudice. (ii) In calculating any Loss or Expense there shall be deducted any insurance recovery, tax benefit or reimbursement received in respect thereof (and no right of subrogation shall accrue hereunder to any insurer). (iii) The amount to which an indemnified person shall be entitled under this Section (85) shall be determined as provided in Section 5.5 belowby the written agreement between the indemnified person and the indemnifying party. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may parties are unable to agree upon such amount, any unagreed remainder shall be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, determined by either binding arbitration pursuant to Section 119(c) hereof (in which event a claim case the indemnified party shall be deemed to have been asserted under this Article V the burden of proof in establishing the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredLoss and Expense suffered by it). (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demand.

Appears in 1 contract

Samples: Asset Purchase Agreement (Invivo Corp)

Notice of Claims. (a) IfIf an indemnified party believes that it has suffered or incurred or is threatened with any Loss and Expense, at it shall notify the indemnifying party promptly in writing, and in any time on or prior event within the applicable Indemnity Period specified in Section 10.1, describing such Loss and Expense, all with reasonable particularity and containing a reference to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and the section or sections provisions of this Agreement alleged as the basis in respect of which such Loss and Expense shall have occurred. If any litigation, arbitration or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to other proceeding is instituted by a third Person with respect to which an indemnified party intends to claim any liability or expense as Loss and Expense under this Article, such Damages, which indemnified party shall be determined as provided in Section 5.5 below. If promptly notify the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate indemnifying party of such Damages, in which legal action. In no event a claim shall be deemed the failure to have been asserted notify the indemnifying party under this Article V in Section relieve the amount indemnifying party of such estimated Damagesits obligations under this Article, but no distribution of additional Common Shares except to the Breitling Indemnified Persons pursuant extent such failure to Section 5.5 below shall be made until notify prejudices such Damages have actually been incurred. indemnifying party (b) including, without limitation, its ability to defend against such claim). In the event that any action, suit or proceeding a controversy over a claim between the indemnifying party and an indemnified party is brought against any Breitling Indemnified Party with respect to which not resolved within thirty (30) days of the Company may have liability under this Article Vgiving of notice of such dispute, the Company parties shall have proceed to binding arbitration pursuant to the rightfollowing procedures: (i) Any party may send another party written notice identifying the matter in dispute and invoking the procedures of this Section (a “Notice of Arbitration”). Within fourteen (14) days, at its cost and expense, to defend such action, suit or proceeding each party involved in the name dispute shall meet at a mutually agreed location 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 matter in dispute for final and binding arbitration. (ii) If the parties fail to resolve the dispute by written agreement or agree on behalf the arbitrator within said fourteen (14) day period, any such party may make written application to the American Arbitration Association (“AAA”) for the appointment of three (3) arbitrators (the “Arbitrators”) to resolve the dispute by arbitration. The Arbitrators shall be appointed by mutual consent of the Breitling Indemnified Party; providedparties in accordance with the rules for commercial arbitration of the AAA then in effect. (iii) Within thirty (30) days of the selection of the Arbitrators, howeverthe parties involved in the dispute shall meet in Boston, that a Breitling Indemnified Massachusetts if Seller is the Party shall have sending the right to retain its own counselNotice of Arbitration, or in Dallas, Texas if Buyer is the Party sending the Notice of Arbitration, with the Arbitrators at a place and time designated by the 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 the AAA in effect on the date of the initial request for appointment of the Arbitrators that gave rise to the dispute to be arbitrated (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 be limited to written discovery directed to no more than five persons, be limited to a single brief stating its case having not more than twenty (20) pages (excluding exhibits) and have no longer than two (2) days to present its position. The entire proceedings before the Arbitrators shall be no more than five (5) business days, and the decision of the Arbitrators shall be made in writing no more than thirty (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 prevailing party (as determined by the Arbitrators) shall in addition be awarded by the Arbitrators such party’s own reasonable attorneys’ fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In in connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company non-prevailing party (as determined by the Arbitrators) shall not, without pay the prior written consent of the applicable Breitling Indemnified Party, which consent shall not be unreasonably withheld or delayed, settle or compromise any claim or demand if such settlement or compromise does not include an irrevocable Arbitrators’ fees and unconditional release of such Breitling Indemnified Party for any liability arising out of such claim or demandexpenses.

Appears in 1 contract

Samples: Asset Purchase and Sale Agreement (Sourcecorp Inc)

Notice of Claims. An indemnified party shall give the indemnifying party prompt notice of any third-party claim (aincluding, but not limited to, any Tax audit examination or proceeding) Ifthat may give rise to any indemnification obligation under this Section 8 and the indemnifying party shall (except as set forth below) have the right to assume and control the defense (at its expense and with the cooperation of the indemnified party, at including the provision of any time on power of attorney requested by the indemnifying party in connection with any Tax audit, examination or prior proceeding) and settlement of any such claim through the indemnifying party’s own counsel or through other counsel reasonably acceptable to the Claims Deadlineindemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume control of any third party proceeding and shall pay the fees and expenses of counsel retained by the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating indemnified party if (i) that a Breitling Indemnified Party incurred the third party proceeding relates to or reasonably believes it may incur Damages and the reasonable estimate of the amount of arises in connection with any such Damages; criminal proceeding, action, indictment, allegation or investigation, or (ii) in reasonable detailthe claim seeks an injunction or equitable relief against the indemnified party. With respect to the actions, lawsuits, investigations, proceedings and other claims that are the subject of the foregoing sentence, the facts alleged as the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party indemnifying party shall have the right to retain its own counsel, with counsel (but the fees and expenses paid by of such counsel shall be at the Company, if representation expense of the Breitling Indemnified Party by counsel retained by the Company would indemnifying party) and participate therein, and no indemnifying party shall be inappropriate because liable for any settlement of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 proceeding or proceeding. The Company shall not, claim without the prior its written consent of the applicable Breitling Indemnified Party, (which consent shall not be unreasonably withheld withheld). The indemnified party, together with any other indemnified parties, may retain one additional counsel to represent the interests of all of such indemnified parties at their own expense if (i) under applicable standards of professional conduct, a conflict with respect to any significant issue between such indemnified parties and the indemnifying party exists or delayedis reasonably likely to arise in respect of such third-party claim, or (ii) the claim, if adversely determined, would not entitle the indemnified party to full indemnity pursuant to this Section 8 by reason of the Threshold Amount, any cap or otherwise. Whether or not the indemnifying party elects to assume the defense of such claim, the indemnifying party shall pay the reasonable fees and expenses of one counsel selected by such indemnified parties in respect of such claim. Notwithstanding the foregoing, without such indemnified parties’ written consent, the indemnifying party shall not settle any action or compromise any claim or demand if such settlement or compromise proceeding which does not include an irrevocable and provide such indemnified parties a full, unconditional release of such Breitling Indemnified Party for any from all liability arising out of with respect to such claim by each claimant or demandplaintiff in a form reasonably acceptable to such indemnified parties’ counsel, nor will the indemnifying party consent to any injunctive relief affecting any indemnified party.

Appears in 1 contract

Samples: Stock Purchase Agreement (TNS Inc)

Notice of Claims. (a) If, at Any Buyer Group Member or Seller Group ---------------- Member (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 time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of such claim, and a reference to the provision of this Agreement upon which such claim is based; provided, however, that: (i) a Claim Notice in -------- ------- respect of any such Damagesaction 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) in reasonable detail, failure to give such notice shall not relieve the facts alleged as Indemnitor of its obligations hereunder except to the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which extent it shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of materially prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party no appeal shall have the right to retain its own counsel, with fees and expenses paid been taken or when all appeals taken shall have been finally determined. (c) Any payment by the Company, if representation of Buyer or the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual Seller under Article IX or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demand.this ----------

Appears in 1 contract

Samples: Stock Purchase Agreement (Aptargroup Inc)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Seller Group Member (the "Indemnified Party") seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurredany other agreement, the number of additional Common Shares to document or instrument executed hereunder or in connection herewith upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Partybased; provided, however, that a Breitling 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. (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 indemnified party for the event giving rise to such Loss or Expense (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 Buyer and Sellers agree to report each payment made in respect of a Loss or Expense 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 Buyer and Sellers at the time indemnification is sought, taking into account the Tax benefits that have been obtained (or that would be obtained if the Indemnified Party took all steps to obtain such Tax benefits, determined by multiplying the maximum possible Tax benefit by the percentage likelihood of success, as determined by the parties). (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 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 right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Asset Purchase Agreement (Anacomp Inc)

Notice of Claims. All claims for indemnification under this Agreement shall be resolved in accordance with the following procedures: (a) If, at any time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by If an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or indemnified party reasonably believes that it may incur Damages and any Losses, it shall deliver a Claim Notice to the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis indemnifying party for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 belowLosses. If an indemnified party receives notice of a third-party claim for which it intends to seek indemnification hereunder, it shall give the indemnifying party prompt written notice of such claim, so that the indemnifying party's defense of such claim is for Damages which the Breitling Indemnified Parties reasonably believe under Section 9.4 hereunder may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredtimely instituted. (b) In When Losses are actually incurred or paid by an indemnified party or on an indemnified party's behalf or otherwise fixed or determined, the event that indemnified party shall deliver a Payment Certificate to the indemnifying party for such Losses. If a Claim Notice or Payment Certificate refers to any claim, action, suit suit, or proceeding is made or brought against by a third party, the Claim Notice or Payment Certificate shall include copies of the claim, any Breitling Indemnified Party process served, and all legal proceedings with respect thereto. (c) If, after receiving a Payment Certificate, the indemnifying party desires to dispute such claim or the amount claimed in the Payment Certificate, it shall deliver to the indemnified party a Counternotice as to such claim or amount. Such Counternotice shall be delivered within thirty (30) days after the date the Payment Certificate to which it relates is received by the Company may have liability under this Article Vindemnifying party. If no such Counternotice is received within the aforementioned 30-day period, the Company indemnifying party shall have waived any further objection to such Payment Certificate or the rightLosses described in it, at its cost and expensethe indemnified party shall be entitled to prompt payment for such Losses from the indemnifying party. (d) If, to defend such action, suit or proceeding in within thirty (30) days after receipt by the name and on behalf indemnified party of the Breitling Indemnified Party; providedCounternotice to a Payment Certificate, howeverthe parties shall not have reached agreement as to the claim or amount in question, that the claim for indemnification shall be decided in accordance with the provisions of Section 13.9 (e) With respect to any Losses based upon an asserted liability or obligation to a Breitling Indemnified Party shall have person or entity not a party to this Agreement for which indemnification is being claimed, the right to retain its own counsel, with fees and expenses paid by the Company, if representation obligations of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent indemnifying party hereunder shall not be unreasonably withheld or delayed, settle or compromise reduced as a result of any action by the party furnishing the notice of third party claim or demand responding to such claim if such settlement action is reasonably required to minimize damages or compromise does not include an irrevocable and unconditional release of such Breitling Indemnified Party for any liability arising out of such claim to avoid a forfeiture or demandpenalty or to comply with a requirement imposed by law.

Appears in 1 contract

Samples: Stock Purchase Agreement (Astea International Inc)

Notice of Claims. (a) If, at any time on or prior Any Parent Group Member seeking indemnification hereunder shall give to the Claims Deadline, any of Representative prompt written notice (a “Claim Notice”) describing in reasonable detail the Breitling Indemnified Parties shall assert a facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of such claim and a reference to the provision of this Agreement or any other Contract, document or instrument executed hereunder or in connection herewith upon which such Damages; claim is based. A Claim Notice in respect of any Action by or against a Person that is not (i) a party to this Agreement or (ii) in reasonable detaila Parent Group Member (each, the facts alleged a “Third Person”) as the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damagesindemnification will be sought (each, which a “Third-Person Claim”) shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim given within a reasonable period of the applicable Breitling Indemnified Party shall state the reasonable estimate time after Parent obtains actual knowledge of such DamagesAction. The failure of any Parent Group Member seeking indemnification hereunder (each, in which event an “Indemnified Party”) to give the Claim Notice to the Representative within a claim reasonable period of time as required by this Section 12.2 shall be deemed to have been asserted not affect such Indemnified Party’s rights under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares XII except to the Breitling Indemnified Persons pursuant extent such failure is actually prejudicial to Section 5.5 below shall be made until such Damages have actually been incurredthe rights and obligations of the Participants. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect to which the Company may have liability shall be entitled under this Article VXII shall be determined: (i) by the written agreement between the Indemnified Party and the Representative; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by an Award. 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) If any Claim Notice, written agreement between the Indemnified Party and the Representative, final judgment or decree of any court or any Award is delivered to a party pursuant to this Section 12.2, a copy of such Claim Notice, written agreement, final judgment or decree or Award shall be delivered promptly to the Escrow Agent. Upon the determination of any amount of indemnification payable to the Indemnified Party pursuant to Section 12.2(b), if cash remains in the Indemnity Escrow Fund, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection Representative shall promptly direct the Escrow Agent to act in accordance with any actionsuch written agreement, suit final judgment or proceeding subject to Article V, decree or Award and distribute cash from the Company and each Breitling Indemnified Party agree to render to each other such assistance as may reasonably be required Indemnity Escrow Fund in order to ensure proper and adequate defense of such action, suit or proceeding. The Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandaccordance therewith.

Appears in 1 contract

Samples: Merger Agreement (Gilead Sciences Inc)

Notice of Claims. (a) If, at any time on or prior Any Person seeking indemnification hereunder (the “Indemnified Party”) shall give promptly to the Claims Deadline, any of Party obligated to provide indemnification to such Indemnified Party (the Breitling Indemnified Parties shall assert “Indemnitor”) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurredany other agreement, the number of additional Common Shares to document or instrument executed hereunder or in connection herewith upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Partybased; provided, however, that the failure of any Indemnified Party to give such notices promptly shall not relieve Indemnitor of its obligations under this ARTICLE 9, except to the extent that the defense of such Action is materially and irrevocably prejudiced by the Indemnified Party’s failure to give such notice. (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 9 shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; or (ii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a Breitling 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 right burden of proof in establishing the amount of Losses suffered by it. All amounts due to retain its own counselthe Indemnified Party as so finally determined shall be paid within thirty (30) days after such final determination by Indemnitor. In the event that the Indemnitor is a Seller then such amounts shall be paid on a Pro Rata Share basis by: (i) at the election of such Seller, with fees and expenses paid the Right of Set Off of requisite amounts from the Buyer Notes or by wire transfer of immediately available funds to an account or accounts specified by the Company, if representation of the Breitling Indemnified Party or (ii) solely in the event that no Buyer Notes are available for set off, the payment of such Seller’s Pro Rata Share by counsel retained wire transfer of immediately available funds to an account or accounts specified by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent but in each case subject to the limitations herein set forth. In the event that the Indemnitor is Buyer then such amounts shall not be unreasonably withheld paid by wire transfer of immediately available funds to an account or delayed, settle or compromise any claim or demand if such settlement or compromise does not include an irrevocable and unconditional release of such Breitling accounts specified by the Indemnified Party for any liability arising out of such claim or demandParty.

Appears in 1 contract

Samples: Stock Purchase Agreement (Joe's Jeans Inc.)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Seller Group Member (the “Indemnified Party”) seeking indemnification hereunder shall give to the Claims Deadline, party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice (a “Claim Notice”) describing the facts giving rise to any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known by the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred the amount or reasonably believes it may incur Damages and the reasonable estimate method of computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to indemnification will be sought (each such Damages, which action or suit being a “Third Person Claim”) shall be determined as given promptly after the action or suit is commenced; provided in Section 5.5 below. If further that failure to give such notice shall not relieve the claim is for Damages which Indemnitor of its obligations hereunder except to the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party extent it shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party no appeal shall have the 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 retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandinsurer).

Appears in 1 contract

Samples: Asset Purchase Agreement (West Corp)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Seller Group Member (the “Indemnified Party”) seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which indemnification will be sought shall be determined as given promptly after the action or suit is commenced; provided in Section 5.5 below. If further that failure to give such notice shall not relieve the claim is for Damages which Indemnitor of its obligations hereunder except to the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party extent it shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article VIII shall be determined (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) pursuant to Section 9.17 and, if necessary, Section 9.18; or (iii) by any other means to which the Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Asset Purchase Agreement (Navigant Consulting Inc)

Notice of Claims. (a) If, at any time on or prior Any party seeking indemnification ---------------- hereunder (the "Indemnified Party") shall give to the Claims Deadline, party obligated to provide ----------------- indemnification to such Indemnified Party (the "Indemnifying Party") a notice (a ------------------ "Claim Notice") describing in reasonable detail the facts giving rise to any of the Breitling Indemnified Parties shall assert a ------------ claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged 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 party as to which indemnification will be sought shall be given promptly after the basis action or bases for the claimsuit is commenced; and (iii) if provided, further, that failure to give such notice shall not relieve the Damages have actually been incurred, Indemnifying Party of its obligations hereunder except to the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which extent it shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article XIII shall be determined: (i) by a written agreement between the Indemnified Party and the Indemnifying Party; (ii) by a final judgment or resolution of an arbitrator or arbitration panel, or by a court of competent jurisdiction entering such a judgment; or (iii) by any other means to which the Company may have liability under this Article VIndemnified Party and the Indemnifying Party shall agree. The judgment or resolution of an arbitrator, arbitration panel or court shall be deemed final when the Company time for appeal, if any, shall have the right, at its cost expired and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party no appeal shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual been taken or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company when all appeals taken shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandhave been finally determined.

Appears in 1 contract

Samples: Asset Purchase Agreement (Nexell Therapeutics Inc)

Notice of Claims. (aEach party indemnified under Section 4(a) Ifhereof or Section 5(b) hereof shall, at any time on or prior to the Claims Deadline, any promptly after receipt of notice of the Breitling Indemnified Parties shall assert commencement of any action, suit, claim, proceeding or investigation (collectively, a claim for indemnification pursuant to Section 5.1"CLAIM") against such indemnified party in respect of which indemnity may be sought, such Breitling Indemnified Party shall submit to notify the Company a written claim indemnifying party in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate writing of the amount commencement thereof, enclosing a copy of all papers served on such indemnified party. The failure of any indemnified party so to notify promptly an indemnifying party of any such Damages; (ii) Claim shall not relieve the indemnifying party from any liability in reasonable detail, the facts alleged as the basis for respect of such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages action which it may have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damagesindemnified party on account of the indemnity agreement contained in Section 5(a) hereof or Section 5(b) hereof, unless the indemnifying party was prejudiced by such failure, 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 Claim shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which indemnified party and it shall notify promptly an indemnifying party of the Company may have liability under this Article Vcommencement thereof, the Company indemnifying party shall have the right, at its cost and expensebe entitled to participate therein and, to defend such actionthe extent that it may wish, suit or proceeding in jointly with any other indemnifying party similarly notified, to assume the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counseldefense 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 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 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 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) hereof or Section 5(b) hereof 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 paid by the Company, if representation of the Breitling Indemnified Party by more than one counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In (in addition to local counsel) separate from its own counsel for all indemnified parties in connection with any action, suit one action or proceeding subject to Article V, separate but similar or related actions in the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability same jurisdiction arising out of such claim the same general allegations or demandcircumstances.

Appears in 1 contract

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

Notice of Claims. (a) If, at any time on or prior Any Party seeking indemnification hereunder (the “Indemnified Party”) shall give promptly to the Claims Deadlineparty obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) (it being understood, any however, that where the Shareholder Parties would otherwise be Indemnitees or Indemnitors, all references to such term as used in the procedural provisions of this Section 10.5 and in Section 10.6 shall instead refer to the Breitling Indemnified Parties shall assert Shareholders’ Committee) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurredany other agreement, the number of additional Common Shares to document or instrument executed hereunder or in connection herewith upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Partybased; provided, however, that the failure of any Indemnified Party to give the Claim Notice promptly as required by this Section 10.5(a) shall not affect such Indemnified Party’s rights under this Article 10 except to the extent such failure is actually 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 shall be entitled under this Article 10 shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a Breitling 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 right burden of proof in establishing the amount of Losses suffered by it. All amounts due to retain its own counsel, with fees and expenses the Indemnified Party as so finally determined shall be paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling Indemnified Party agree to render to each other wire transfer within thirty (30) days after such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, suit or proceeding. The Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandfinal determination.

Appears in 1 contract

Samples: Merger Agreement (SCP Pool Corp)

Notice of Claims. (a) IfIf Prentice Oil or Purchaser believe that they or it have suffered or incurred any Loss or Expense and are entitled to indemnity from any other party under this Section 5, at any time on the indemnified person shall so notify Seller and Shareholder promptly in writing describing such Loss or prior Expense, the amount thereof, if known, and the method of computation of such Loss or Expense, all with reasonable particularity and containing a reference to the Claims Deadline, provisions of this Agreement in 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 any of the Breitling Indemnified Parties indemnified persons intends to claim any liability or expense as Loss or Expense under this Section 5, any such indemnified person shall assert promptly notify the indemnifying party of such action or suit. The amount to which an indemnified person shall be entitled under this Section 5 shall be determined: (i) by the written agreement between the indemnified person and Seller, (ii) by a judgment, decree, decision or award of any court, arbitration board or administrative agency of competent jurisdiction, (iii) by a settlement of the claim or (iv) by any other means to which the indemnified person and Seller shall agree. In no event shall Purchaser or Prentice Oil be required to pay the amount of any Loss or Expense prior to receipt of any indemnification hereunder. Seller and Shareholder agree to pay in advance upon demand by the Purchaser the amount of any Loss or Expense unless Seller or Shareholder elect to contest at their sole expense any third party claim giving rise to a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredhereunder. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demand.

Appears in 1 contract

Samples: Stock Exchange Agreement (Triad Innovations Inc)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Parent Group Member (the "Indemnified Party") seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which indemnification will be sought shall be determined as given promptly after the action or suit is commenced; provided in Section 5.5 below. If further that failure to give such notice shall not relieve the claim is for Damages which Indemnitor of its obligations hereunder except to the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party extent it shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Asset Purchase Agreement (Isolyser Co Inc /Ga/)

Notice of Claims. Promptly after receipt by an PTC Indemnitee of notice of any complaint by a third party or the commencement of any action or proceeding by a third party (aeach, a "Third-Party Claim") Ifthat may result in a Loss with respect to which such PTC Indemnitee may claim indemnification under this Section 8, at any time on or prior the PTC Indemnitee shall give written notice (a "Third-Party Demand") to the Claims Deadline, any Stockholder Representative on behalf of the Breitling Indemnified Parties shall assert a claim for Securityholders obligated to provide indemnification under this Section 8 (each, an "Indemnifying Party") and to the Escrow Agent. In the event any PTC Indemnitee seeks indemnification pursuant to this Section 5.18 other than in connection with a Third-Party Claim, such Breitling Indemnified PTC Indemnitee shall send a written notice of the respective Loss, or of any circumstance that with the lapse of time and/or the occurrence of any other event or circumstance, may give rise to a Loss (together with any Third-Party shall submit Demand, a "Demand") to the Company a written claim in good faith signed by an authorized officer Stockholder Representative on behalf of Breitling or other Breitling Indemnified Party, as applicable, stating the Indemnifying Parties and to the Escrow Agent. Any Demand delivered pursuant to this Section 8.3(a) shall (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as describe the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; Demand in reasonable detail and (iiiii) indicate the amount (reasonably estimated, if appropriate) of the Damages have actually Loss that has been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe or may be incurred suffered by the PTC Indemnitee. No delay or are failure to give any such notice by any PTC Indemnitee shall relieve any Indemnifying Party from any obligation hereunder or otherwise un-liquidatedprejudice any claim capable of being made against the Escrow Funds (provided that such Demand is made before the Claims Termination Date), the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares except to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredextent that the Indemnifying Party is materially prejudiced thereby. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demand.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Parametric Technology Corp)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Seller Group Member (the “Indemnified Party”) seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1hereunder and shall include in such Claim Notice (if then known and, such Breitling Indemnified Party shall submit to the Company if not then known, a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate thereof) the amount or the method of computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which indemnification will be sought shall be determined as given promptly after the action or suit is commenced; provided in Section 5.5 below. If further that failure to give such notice shall not relieve the claim is for Damages which Indemnitor of its obligations hereunder except to the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party extent it shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article VIII shall be determined (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) pursuant to Section 9.18 and, if necessary, Section 9.19; or (iii) by any other means to which the Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Asset Purchase Agreement (Navigant International Inc)

Notice of Claims. Any Buyer Group Member or Seller Group Member (athe "Indemnified Party") If, at any time on or prior seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate 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 Damagesclaim 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 after the action or suit is commenced; provided further that failure 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. After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article IX shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) in reasonable detailby a final decision of the arbitrators pursuant to Section 11.11 or, to the facts alleged as the basis for such claim and the section extent permitted by Section 11.11, a final judgment or sections decree of this Agreement alleged as the basis any court of competent jurisdiction; or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares by any other means to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party and the Indemnitor shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling agree. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Asset Purchase Agreement (Meredith Corp)

Notice of Claims. (a) If, at any time on or prior Any Indemnified Party wishing to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for right to indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and the section or sections of under this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified an Indemnifying Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such any action, suit suit, claim or other legal proceeding in the name and on behalf made or brought against such Indemnified Party by any Person who is neither a Party, an Affiliate of a Party, nor a Representative of any of the Breitling Indemnified Partyforegoing (a “Third Party Claim”) shall give the Indemnifying Party written notice thereof promptly after receiving notice of the assertion or commencement of the Third Party Claim; provided, however, that the failure to give such prompt written notice shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that the Indemnifying Party can demonstrate actual material loss or prejudice as a Breitling result of such failure. Such notice by the Indemnified Party shall have (i) describe the right to retain its own counselnature and basis for the Third Party Claim in reasonable detail, with fees and expenses paid (ii) indicate the amount or estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, (iii) identify each provision of this Agreement under which consent shall not be unreasonably withheld the claim of right to indemnification is made, (iv) include copies of all material written evidence and correspondence thereof or delayedwith respect thereto, settle or compromise any claim or demand if such settlement or compromise does not include an irrevocable (v) describe all claims, and unconditional release the status of such Breitling claims, if any, for insurance coverage as contemplated in Section 7.5.1, and (vi) describe what actions, if any, the Indemnified Party for has taken to mitigate any liability arising out asserted Loss as contemplated in Section 7.5.4. The Indemnified Party shall provide to the Indemnifying Party copies of any documentation supporting the Third Party Claim that is in the Indemnified Party’s possession (including with respect to any Tax matters, copies of any notices or correspondence received by the Indemnified Party from, or sent by the Indemnified Party to, any Taxing Authority) promptly following the delivery of the foregoing notice (or coming into possession of such claim or demanddocumentation following delivery of the foregoing notice). For the avoidance of doubt, this Section 7.7.1 shall apply with respect to any Third Party Claim related to Taxes.

Appears in 1 contract

Samples: Securities Purchase Agreement (Nine Energy Service, Inc.)

Notice of Claims. All claims for indemnification under this Agreement shall be resolved in accordance with the following procedures: (a) If, at any time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by If an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or indemnified party reasonably believes that it may incur Damages and any Losses, it shall deliver a Claim Notice to the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis indemnifying party for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 belowLosses. If an indemnified party receives notice of a third-party claim for which it intends to seek indemnification hereunder, it shall give the indemnifying party prompt written notice of such claim, so that the indemnifying party’s defense of such claim is for Damages which the Breitling Indemnified Parties reasonably believe under Section 9.4 hereunder may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredtimely instituted. (b) In When Losses are actually incurred or paid by an indemnified party or on an indemnified party’s behalf or otherwise fixed or determined, the event that indemnified party shall deliver a Payment Certificate to the indemnifying party for such Losses. If a Claim Notice or Payment Certificate refers to any claim, action, suit suit, or proceeding is made or brought against by a third party, the Claim Notice or Payment Certificate shall include copies of the claim, any Breitling Indemnified Party process served, and all legal proceedings with respect thereto. (c) If, after receiving a Payment Certificate, the indemnifying party desires to dispute such claim or the amount claimed in the Payment Certificate, it shall deliver to the indemnified party a Counternotice as to such claim or amount. Such Counternotice shall be delivered within thirty (30) days after the date the Payment Certificate to which it relates is received by the Company may have liability under this Article Vindemnifying party. If no such Counternotice is received within the aforementioned 30-day period, the Company indemnified party shall have be entitled to prompt payment for such Losses from the rightindemnifying party. (d) If, at its cost and expense, to defend such action, suit or proceeding in within thirty (30) days after receipt by the name and on behalf indemnified party of the Breitling Indemnified Party; providedCounternotice to a Payment Certificate, howeverthe parties shall not have reached agreement as to the claim or amount in question, that the claim for indemnification shall be decided in accordance with the provisions of Section 10.7. (e) With respect to any Losses based upon an asserted liability or obligation to a Breitling Indemnified Party shall have person or entity not a party to this Agreement for which indemnification is being claimed, the right to retain its own counsel, with fees and expenses paid by the Company, if representation obligations of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent indemnifying party hereunder shall not be unreasonably withheld or delayed, settle or compromise reduced as a result of any action by the party furnishing the notice of third party claim or demand responding to such claim if such settlement action is reasonably required to minimize damages or compromise does not include an irrevocable and unconditional release of such Breitling Indemnified Party for any liability arising out of such claim to avoid a forfeiture or demandpenalty or to comply with a requirement imposed by law.

Appears in 1 contract

Samples: Merger Agreement (Golf Galaxy, Inc.)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Emmis Group Member seeking indemnification hereunder (the “Indemnified Party”) shall give promptly to the Claims Deadline, any of party obligated to provide indemnification to such Indemnified Party (the Breitling Indemnified Parties shall assert “Indemnitor”) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurredany other agreement, the number of additional Common Shares to document or instrument executed hereunder or in connection herewith upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim based. The failure of the applicable Breitling any Indemnified Party to give the Claim Notice promptly as required by this Section 9.3 shall state the reasonable estimate of not affect such Damages, in which event a claim shall be deemed to have been asserted Indemnified Party’s rights ----------- under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares IX except to the Breitling Indemnified Persons pursuant extent such failure is actually prejudicial to Section 5.5 below shall be made until such Damages have actually been incurredthe rights and obligations of the ---------- Indemnitor. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article IX 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree in writing. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Losses and expenses paid Expenses suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Asset Purchase Agreement (Emmis Operating Co)

Notice of Claims. (a) If, at any time on Any Cinram Group Member or prior Sellers' Group Member (the "Indemnified Party") seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; PROVIDED, HOWEVER, 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 basis action or bases for the claimsuit is commenced; and (iii) if PROVIDED FURTHER that failure to give such notice shall not relieve the Damages have actually been incurred, Indemnitor of its obligations hereunder except to the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which extent it shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (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 event that amount of any action, suit or proceeding is brought against any Breitling 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), as determined in accordance with Section 11.5. (c) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which the Company may have liability an Indemnified Party shall be entitled under this Article VXI 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, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Asset Purchase Agreement (Quixote Corp)

Notice of Claims. (a) If, at any time on or prior Any party seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate 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 Damagesclaim is based; 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) in reasonable detail, failure to give such notice shall not relieve the facts alleged as Indemnitor of its obligations hereunder except to the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which extent it shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Share Purchase Agreement (China INSOnline Corp.)

Notice of Claims. (a) If, at any time on or prior Any Parent Group Member seeking indemnification hereunder shall give to the Claims DeadlineShareholder Representative, and any of Shareholder Group Member seeking indemnification hereunder shall give to Parent, a written notice (a “Claim Notice”) describing in reasonable detail the Breitling Indemnified Parties shall assert a facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and a reference to the section or sections provision of this Agreement alleged or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based. A Claim Notice in respect of any action at law or suit in equity by or against a third Person as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which indemnification will be sought shall be determined given promptly after the action or suit is commenced. The failure of any indemnified party to give the Claim Notice promptly as provided in required by this Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party 11.3 shall state the reasonable estimate of not affect such Damages, in which event a claim shall be deemed to have been asserted indemnified party’s rights under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares XI except to the Breitling Indemnified Persons pursuant extent such failure is actually prejudicial to Section 5.5 below shall be made until such Damages have actually been incurredthe rights and obligations of the indemnifying party. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit 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 indemnifying party (with such indemnifying party, in the case of the Shareholders, being the Shareholder Representative); (ii) by a final judgment or proceeding is brought against decree of any Breitling Indemnified Party with respect court of competent jurisdiction; (iii) by an Award; or (iv) by any other means to which the Company may have liability under this Article Vapplicable indemnified party and the indemnifying party (with such indemnifying party, in the Company case of the Shareholders, being the Shareholder Representative) shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have the right, at its cost expired and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party no appeal shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual been taken or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company when all appeals taken shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandhave been finally determined.

Appears in 1 contract

Samples: Merger Agreement (Allscripts Healthcare Solutions Inc)

Notice of Claims. (a) Ifany Parent Group Member, at any time on Company Group Member or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified PartyStockholder Group Member (each, as applicable, stating (ian “Indemnified Party”) that a Breitling seeking indemnification hereunder shall give to the party obligated to provide indemnification to such Indemnified Party incurred (the “Indemnitor”) a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any claim for indemnification hereunder and shall include in such Claim Notice (if then known) the amount or reasonably believes it may incur Damages and the reasonable estimate 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 Damagesclaim is based; 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) in reasonable detail, failure to give such notice shall not relieve the facts alleged as Indemnitor of its obligations hereunder except to the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which extent it shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in prejudiced by such failure or it shall not have been delivered within 30 days following the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredSurvival Date. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article IX 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) To the right maximum extent permitted under applicable Law, each party hereto or beneficiary of an indemnification payment made hereunder agrees to retain its own counsel, with fees and expenses report each indemnification payment hereunder as an adjustment to the Merger Consideration paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party Parent hereunder for any liability arising out of such claim or demandfederal income tax purposes.

Appears in 1 contract

Samples: Merger Agreement (Geo Group Inc)

Notice of Claims. An indemnified party shall give the indemnifying party prompt notice of any third-party claim (aincluding, but not limited to, any Tax audit examination or proceeding) Ifthat may give rise to any indemnification obligation under this Section 8 and the indemnifying party shall (except as set forth below) have the right to assume and control the defense (at its expense and with the cooperation of the indemnified party, at including the provision of any time on power of attorney requested by the indemnifying party in connection with any Tax audit, examination or prior proceeding) and settlement of any such claim through the indemnifying party's own counsel or through other counsel reasonably acceptable to the Claims Deadlineindemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume control of any third party proceeding and shall pay the fees and expenses of counsel retained by the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating indemnified party if (i) that a Breitling Indemnified Party incurred the third party proceeding relates to or reasonably believes it may incur Damages and the reasonable estimate of the amount of arises in connection with any such Damages; criminal proceeding, action, indictment, allegation or investigation, or (ii) in reasonable detailthe claim seeks an injunction or equitable relief against the indemnified party. With respect to the actions, lawsuits, investigations, proceedings and other claims that are the subject of the foregoing sentence, the facts alleged as the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party indemnifying party shall have the right to retain its own counsel, with counsel (but the fees and expenses paid by of such counsel shall be at the Company, if representation expense of the Breitling Indemnified Party by counsel retained by the Company would indemnifying party) and participate therein, and no indemnifying party shall be inappropriate because liable for any settlement of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 proceeding or proceeding. The Company shall not, claim without the prior its written consent of the applicable Breitling Indemnified Party, (which consent shall not be unreasonably withheld withheld). The indemnified party, together with any other indemnified parties, may retain one additional counsel to represent the interests of all of such indemnified parties at their own expense if (i) under applicable standards of professional conduct, a conflict with respect to any significant issue between such indemnified parties and the indemnifying party exists or delayedis reasonably likely to arise in respect of such third-party claim, or (ii) the claim, if adversely determined, would not entitle the indemnified party to full indemnity pursuant to this Section 8 by reason of the Threshold Amount, any cap or otherwise. Whether or not the indemnifying party elects to assume the defense of such claim, the indemnifying party shall pay the reasonable fees and expenses of one counsel selected by such indemnified parties in respect of such claim. Notwithstanding the foregoing, without such indemnified parties' written consent, the indemnifying party shall not settle any action or compromise any claim or demand if such settlement or compromise proceeding which does not include an irrevocable and provide such indemnified parties a full, unconditional release of such Breitling Indemnified Party for any from all liability arising out of with respect to such claim by each claimant or demandplaintiff in a form reasonably acceptable to such indemnified parties' counsel, nor will the indemnifying party consent to any injunctive relief affecting any indemnified party.

Appears in 1 contract

Samples: Stock Purchase Agreement (Psinet Inc)

Notice of Claims. (a) If, at any time on or prior Any Party seeking indemnification under this Article 6 (the “Indemnified Party”) shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurredany other agreement, the number of additional Common Shares to document or instrument executed hereunder or in connection herewith upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Partybased; provided, however, that a Breitling 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. (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 6 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 right to retain its own counsel, with fees and expenses paid burden of proof in establishing the amount of Loss suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Project Assignment Agreement (Global Energy Holdings Group, Inc.)

Notice of Claims. (a) IfPromptly after receipt by an indemnified party under Sections 4.01, at 4.02 or 4.03 of written notice of the commencement of any time on action or prior proceeding, such indemnified party shall, without regard to whether a claim in respect thereof is to be made against an indemnifying party pursuant to the Claims Deadlineindemnification provisions of, any or as contemplated by this Paragraph 4, notify such indemnifying party in writing of the Breitling Indemnified Parties commencement of such action or proceeding; but the omission so to notify the indemnifying party shall assert a claim for not relieve it from any liability which it may have to any indemnified party in respect of such action or proceeding on account of the indemnification pursuant provisions of or contemplated by Sections 4.01, 4.02 or 4.03 unless the indemnifying party was prejudiced by such failure of the indemnified party to Section 5.1give such notice, and in no event shall such omission relieve the indemnifying party from any other liability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party and it shall notify an indemnifying party of the commencement thereof, such Breitling Indemnified Party indemnifying party shall submit be entitled to participate therein and, to the Company a written claim extent that it shall determine, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably 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, such indemnifying party shall not be liable to such indemnified party for any legal or any other expenses, in good faith signed each case subsequently incurred by an authorized officer such indemnified party, in connection with the defense thereof other than reasonable costs of Breitling investigation (unless such indemnified party reasonably objects to such assumption on the grounds that there may be defenses to it which are different from or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and in addition to such indemnifying party in which event the reasonable estimate of indemnified party shall be reimbursed by the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and the section or sections of this Agreement alleged as the basis or bases indemnifying party for the expenses incurred in connection with retaining one and only one separate counsel). If the indemnifying party is not entitled to, or elects not to, assume the defense of a claim; , it will not be obligated to pay the fees and (iii) if the Damages have actually been incurred, the number expenses of additional Common Shares to which the Breitling Indemnified Parties are entitled to more than one counsel for each indemnified party with respect to such Damages, which shall claim. The indemnifying party will not be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, any liability for any settlement made without the prior written consent of the applicable Breitling Indemnified Partyits consent, which consent shall not be unreasonably withheld withheld. No indemnifying party will consent to entry of any judgment or delayed, settle or compromise enter into any claim or demand if such settlement or compromise agreement which does not include as an irrevocable and unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release of such Breitling Indemnified Party for any from all liability arising out in respect of such claim or demandlitigation.

Appears in 1 contract

Samples: Registration Rights Agreement (Crown American Realty Trust)

Notice of Claims. (a) If, at If the Company believes that it has suffered or incurred any time on Loss or prior incurred any Expense for which the Company believes BSI is required to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for provide indemnification pursuant to Section 5.17.2, the Company shall so notify Bell promptly in writing xxxxribing such Breitling Indemnified Party shall submit Loss or Expense, the amount thereof, if known, and the method of computation of such Loss or Expense, all with reasonable particularity and containing a reference to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and the section or sections provisions of this Agreement alleged as the basis in respect of which such Loss or bases for the claim; and (iii) if the Damages Expense shall have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 belowoccurred. If the claim any action at law or suit in equity is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred instituted by or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event against a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party third party with respect to which the Company may have intends to claim any liability or expense as Loss or Expense under this Article VVII, the Company shall notify Bell promptly in writing xx such action or suit. (b) If Bell believes that it hax xuffered or incurred any Loss or incurred any Expense for which Bell believes the Compaxx is required to provide indemnification pursuant to Section 7.3, Bell shall so xxxify the Company promptly in writing describing such Loss or Expense, the amount thereof, if known, and the method of computation of such Loss or Expense, all with reasonable particularity and containing a reference to the provisions of this Agreement in 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 Bell intends to claim any liability or expense as Loss or Expense under this Article VII, Bell shall notify the rightCompxxx promptly in writing of such action or suit. (c) The amount to which an indemnified person shall be entitled under this Article VII shall be determined: (i) by the written agreement between the indemnified person and the indemnifying party; (ii) by final judgment or decree of a court of competent jurisdiction; or (iii) by any other means to which the indemnified person and the indemnifying party shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, at its cost if any, shall have expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party when all appeals taken have been finally determined. The indemnified person shall have the right to retain its own counsel, with fees and expenses paid by burden of proof in establishing the Company, if representation amount of the Breitling Indemnified Party Loss and Expense suffered by counsel retained by it. (d) Notwithstanding the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article Vforegoing, the Company and each Breitling Indemnified Party agree failure of any person hereto to render to each other such assistance as may reasonably be required give any notice described in order to ensure proper and adequate defense of such action, suit or proceeding. The Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent this Section 7.5 shall not be unreasonably withheld or delayedrelieve any party hereto of its obligations hereunder, settle or compromise any claim or demand if except to the extent such settlement or compromise does not include an irrevocable and unconditional release of failure shall have prejudiced such Breitling Indemnified Party for any liability arising out of such claim or demandparty.

Appears in 1 contract

Samples: Merchandise Sourcing Agreement (Bell Sports Corp)

Notice of Claims. (a) If, at any time on or prior to the Claims Deadline, any Assumption of the Breitling Indemnified Parties shall assert Defense. As soon as is reasonably practicable after becoming aware of a claim for indemnification pursuant to Section 5.1under this Agreement or the commencement of any suit, such Breitling action or proceeding by any Person not a party hereto in respect of which indemnity may be sought under this Agreement, the Indemnified Party Person shall submit promptly give notice to the Company a written claim in good faith signed by an authorized officer Indemnifying Person of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and the section or sections of this Agreement alleged as amount the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are Person will be entitled to with respect receive hereunder from the Indemnifying Person; provided, that the failure of the Indemnified Person to such Damages, which give notice shall be determined as provided in Section 5.5 belownot relieve the Indemnifying Person of its obligations under this Article XIII except to the extent (if any) that the Indemnifying Person shall have been actually prejudiced thereby. If the Indemnifying Person does not object in writing to such indemnification claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidatedwithin thirty (30) days of receiving notice thereof, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim Person shall be deemed entitled to have been asserted under this Article V in recover promptly from the Indemnifying Person the amount of such estimated Damagesclaim, and no later objection by the Indemnifying Person shall be permitted. If the Indemnifying Person agrees that it has an indemnification obligation but no distribution of additional Common Shares objects that it is obligated to pay only a lesser amount, the Indemnified Person shall nevertheless be entitled to recover promptly from the Indemnifying Person the lesser amount, without prejudice to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In Person's claim for the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the rightdifference. The Indemnifying Person may, at its cost and expense, to defend such action, suit or proceeding own expense participate in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 actionany claim, suit suit, action or proceeding. The Company shall notIndemnifying Person also may, without at its own expense, assume the prior defense of any claim, suit, action or proceeding upon (a) the written consent of the applicable Breitling Indemnified Party, Person which consent shall not be unreasonably withheld or delayed, settle or compromise any expressly allows the Indemnifying Person to assume such defense while reserving its rights to challenge the Indemnified Person's indemnification claim or demand if such settlement or compromise does not include an irrevocable and unconditional release of such Breitling Indemnified Party for any liability arising out of such claim or demand.(b) upon notice to the Indemnified

Appears in 1 contract

Samples: Asset Purchase Agreement (Unimark Group Inc)

Notice of Claims. (a) If, at any time on Any Buyer Indemnitee or prior Seller Indemnitee (the "Indemnified Party") seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged or any agreement, document or instrument executed 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which indemnification will be sought shall be determined as provided in Section 5.5 below. If given promptly after the claim action or suit is for Damages which commenced; provided, further, that failure to give such notice shall not relieve the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, Indemnitor of its obligations hereunder except to the written claim of the applicable Breitling Indemnified Party extent it shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of materially prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect to which the Company may have liability shall be entitled under this Article VDC 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 an arbitration award entered pursuant to Section 9.5. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling 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) If an Indemnified Party is entitled to indemnification hereunder, the Indemnitor shall pay to the Indemnified Party the amount to which the Indemnified Party is entitled promptly after the amount has been determined. Buyer shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation offset any such amount against any portion of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling Indemnified Party agree to render to each other such assistance Purchase Price not yet paid as may reasonably be required in order to ensure proper and adequate defense of such action, suit or proceeding. The Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demanddate.

Appears in 1 contract

Samples: Asset Purchase Agreement (Paulson Capital Corp)

Notice of Claims. (a) If, at any time on or prior Any Parent Group Member seeking indemnification hereunder shall give to the Claims DeadlineRepresentative, and any Participating Equity Holder seeking indemnification hereunder shall give to Parent, prompt written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to the claim for indemnification hereunder and shall include in such Claim Notice (if then known) the amount or the method of computation of the Breitling amount of such claim and a reference to the provision of this Agreement or any other Contract, document or instrument executed hereunder or in connection herewith upon which such claim is based. A Claim Notice in respect of any action at law or suit in equity by or against a Person that is not (i) a party to this Agreement, (ii) a Parent Group Member or (iii) a Participating Equity Holder (each, a “Third Person”) as to which indemnification will be sought (each, a “Third-Person Claim”) shall be given promptly after the action or suit is commenced. The failure of any Parent Group Member or Participating Equity Holder seeking indemnification hereunder (each, an “Indemnified Parties shall assert Party”) to give the Claim Notice to the party against whom a claim for indemnification pursuant to is being asserted (each, an “Indemnitor”) promptly as required by this Section 5.1, 12.3 shall not affect such Breitling Indemnified Party shall submit Party’s rights under this Article XII except to the Company a written claim in good faith signed by an authorized officer extent such failure is actually prejudicial to the rights and obligations of Breitling or other Breitling the party obligated to provide indemnification to such Indemnified Party. For the purposes of this Article XII, as applicablethe term “Indemnitor” shall refer to the Representative, stating (i) if and to the extent that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis claim for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to indemnification is being asserted with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredEscrow Fund. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect to which the Company may have liability shall be entitled under this Article VXII 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 an Award. 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) If any Claim Notice, written agreement between the Indemnified Party and the Indemnitor, final judgment or decree of any court or any Award is delivered to a party pursuant to this Section 12.3, a copy of such Claim Notice, written agreement, final judgment or decree or Award shall be delivered promptly to the Escrow Agent. Upon the determination of any amount of indemnification payable to the Indemnified Party pursuant to Section 12.3(b), if cash remains in the Escrow Fund, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection Indemnitor shall promptly direct the Escrow Agent to act in accordance with any actionsuch written agreement, suit final judgment or proceeding subject to Article V, decree or Award and distribute cash from the Company and each Breitling Indemnified Party agree to render to each other such assistance as may reasonably be required Escrow Fund in order to ensure proper and adequate defense of such action, suit or proceeding. The Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandaccordance therewith.

Appears in 1 contract

Samples: Merger Agreement (Gilead Sciences Inc)

Notice of Claims. (a) If, at With respect to any time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, matter as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which any ------------------ person or entity (the Breitling "Indemnified Parties are Person") is entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If indemnification from any other person or entity (the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted "Indemnifying Person") under this Article V in 9, the amount of such estimated DamagesIndemnified Person shall have the right, but no distribution not the obligation, to contest, defend or litigate, and to retain counsel of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that its choice in connection with, any claim, action, suit or proceeding is brought by any third party alleged or asserted against any Breitling the Indemnified Party with Person in respect of, resulting from, relating to which or arising out of such matter, and the Company may have liability under this Article V, costs and expenses thereof shall be subject to the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf indemnification obligations of the Breitling Indemnified PartyIndemnifying Person hereunder; provided, however, that a Breitling if the Indemnifying Person acknowledges in writing its obligation to indemnify the Indemnified Party Person in respect of such matter to the fullest extent provided by this Article 9, then an Indemnifying Person shall have be entitled, at its option, to assume and control the right to retain its own counseldefense of such claim, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject at its expense through counsel of its choice if it gives prompt notice of its intention to Article Vdo so to the indemnified Person. Neither an indemnified Person nor an Indemnifying Person shall be entitled to settle or compromise any such claim, the Company and each Breitling 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 Company shall not, proceeding without the prior written consent of the applicable Breitling other party hereto and for purposes of this provision the "other party hereto" shall be: (a) Purchaser, for any Indemnified PartyPerson or Indemnifying Person who is a Sellers' Indemnified Person; and (b) the Shareholders' Agents, for any Indemnified Person or Indemnifying Person who is a Purchaser's Indemnified Person, which consent shall not be unreasonably withheld withheld, delayed or delayed, settle or compromise any claim or demand if such settlement or compromise does not include an irrevocable and unconditional release of such Breitling Indemnified Party for any liability arising out of such claim or demandconditioned.

Appears in 1 contract

Samples: Stock Purchase and Subscription Agreement (Upgrade International Corp /Fl/)

Notice of Claims. (a) If, at any time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert If a claim for indemnification pursuant Losses (a “Claim”) is to Section 5.1be made by Parent that does not involve a third party, such Breitling Indemnified Party Parent shall submit give written notice (a “Claim Notice”) to the Company a written claim in good faith signed by an authorized officer of Breitling VSee or other Breitling Indemnified PartyiDoc, as applicable, stating and the Escrow Agent (in such capacity, the “Indemnifying Party”), which Claim Notice shall describe the claim for indemnification hereunder and specify in reasonable detail, to the extent known and reasonably quantifiable at such time, the amount or estimated amount of the Claim, which statement or estimate shall not be binding and may be revised, amended or modified upon notice to the Indemnifying Party. The failure of Parent to give timely notice of a Claim hereunder shall not affect Parxxx’x rights to indemnification hereunder. If the applicable Indemnifying Party disputes in writing its liability with respect to such Claim or the estimated amount of such Losses pursuant to this Section 8.4 within forty-five (45) days following delivery of such Claim Notice, the parties shall attempt in good faith to resolve such dispute; provided, that, if such dispute has not been resolved within thirty (30) days following notice of such dispute of the Claim Notice, then the amount of indemnification to which Parent shall be entitled under this Article 8 shall be determined by: (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages the written agreement between Parent and the reasonable estimate Indemnifying Party through the use of good faith efforts to resolve such dispute; (ii) a final judgment or decree of any Governmental Entity of competent jurisdiction; or (iii) any other means to which Parent and the Indemnifying Party shall agree. The judgment or decree of a Governmental Entity 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. Following such determination of the amount of any such Damages; (ii) in reasonable detailindemnification, the facts alleged as the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If applicable Indemnifying Party notifies Parent that it does not dispute the claim is for Damages which described in the Breitling Indemnified Parties reasonably believe may be incurred Claim Notice or are otherwise unfails to respond within forty-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate five (45) days following receipt of such DamagesClaim Notice, in which event a claim shall be deemed to have been asserted under this Article V in such determination of the amount of such estimated Damagesindemnification or the Losses identified in the Claim Notice, but no distribution as applicable, will be conclusively deemed a liability of additional Common Shares the Indemnifying Party under Section 8.2(a) or Section 8.2(b), as applicable, and Parent shall forward to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until Indemnifying Party written notice of any such Damages have actually been incurred. (b) In sums due and owing by the event that any action, suit or proceeding is brought against any Breitling Indemnified Indemnifying Party with respect to which and the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Indemnifying Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling Indemnified Party agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense pay all of such action, suit or proceeding. The Company shall not, without the prior written consent sums so due and owing within five (5) Business Days by wire transfer of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandimmediately available funds.

Appears in 1 contract

Samples: Business Combination Agreement (Digital Health Acquisition Corp.)

Notice of Claims. All claims for indemnification under this Agreement shall be resolved in accordance with the following procedures: (a) If, at any time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by If an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or indemnified party reasonably believes that it may incur Damages and any Losses, it shall deliver a Claim Notice to the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis indemnifying party for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 belowLosses. If an indemnified party receives notice of a third-party claim for which it intends to seek indemnification hereunder, it shall give the indemnifying party prompt written notice of such claim, so that the indemnifying party's defense of such claim is for Damages which the Breitling Indemnified Parties reasonably believe under Section 9.4 hereunder may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredtimely instituted. (b) In When Losses are actually incurred or paid by an indemnified party or on an indemnified party's behalf or otherwise fixed or determined, the event that indemnified party shall deliver a Payment Certificate to the indemnifying party for such Losses. If a Claim Notice or Payment Certificate refers to any claim, action, suit suit, or proceeding is made or brought against by a third party, the Claim Notice or Payment Certificate shall include copies of the claim, any Breitling Indemnified Party process served, and all legal proceedings with respect thereto. (c) If, after receiving a Payment Certificate, the indemnifying party desires to dispute such claim or the amount claimed in the Payment Certificate, it shall deliver to the indemnified party a Counternotice as to such claim or amount. Such Counternotice shall be delivered within thirty (30) days after the date the Payment Certificate to which it relates is received by the Company may have liability under this Article Vindemnifying party. If no such Counternotice is received within the aforementioned 30-day period, the Company indemnified party shall have be entitled to prompt payment for such Losses from the rightindemnifying party. (d) If, at its cost and expense, to defend such action, suit or proceeding in within thirty (30) days after receipt by the name and on behalf indemnified party of the Breitling Indemnified Party; providedCounternotice to a Payment Certificate, howeverthe parties shall not have reached agreement as to the claim or amount in question, that the claim for indemnification shall be decided in accordance with the provisions of Section 11.8. (e) With respect to any Losses based upon an asserted liability or obligation to a Breitling Indemnified Party shall have person or entity not a party to this Agreement for which indemnification is being claimed, the right to retain its own counsel, with fees and expenses paid by the Company, if representation obligations of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent indemnifying party hereunder shall not be unreasonably withheld or delayed, settle or compromise reduced as a result of any action by the party furnishing the notice of third party claim or demand responding to such claim if such settlement action is reasonably required to minimize damages or compromise does not include an irrevocable and unconditional release of such Breitling Indemnified Party for any liability arising out of such claim to avoid a forfeiture or demandpenalty or to comply with a requirement imposed by law.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Allied Waste Industries Inc)

Notice of Claims. (a) IfIf any Indemnified Person is threatened with any claim, at or any time on claim is presented to or prior made to an Indemnified Person, or any Action is commenced against an Indemnified Person, which may give rise to a right to indemnification hereunder, such Indemnified Person shall, with reasonable promptness, give written notice of such claim to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicableSeller, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detailthe Loss and method of computation thereof, and containing a reference to the facts alleged as the basis for such claim and the section or sections provisions of this Agreement alleged as the basis in respect of which such right of indemnification is claimed or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Partyarises; provided, however, that the failure to provide such notice shall not release the Seller from any of its obligations under this Article VII except to the extent that the Seller are materially prejudiced by such failure and shall not relieve the Seller from any other obligation or liability that it may have to the Indemnified Person otherwise than under this Article VII. Without prejudice to the Indemnified Person’s right of indemnification under this Article VII, the Indemnified Person shall before taking any Action with respect to the subject claim, make itself available to meet with the Seller and, along with the Seller, attempt to resolve and/or settle the subject claim. The obligations and liabilities of the Seller under this Article VII with respect to Losses arising from claims of any third Person which are subject to the indemnification provided for in this Article VII (the “Third Person Claims”) shall be governed by and be contingent upon the following additional terms and conditions: the Seller may elect, after consultation with the Indemnified Person and within thirty (30) days after the receipt of a Breitling notice of claim and upon written acknowledgement of its indemnification obligations to the Indemnified Party Person hereunder, or five (5) days before the return date required by any claim, citation or other statute, whichever occurs earlier, to contest and defend against any Third Person Claims at the Seller’ expense, and shall have give written notice to the right Indemnified Person of the commencement of such contest or defense with reasonable promptness after the giving of the written notice of such claim by the Indemnified Person. If the Seller acknowledge in writing their obligation to indemnify the Indemnified Person hereunder against any Third Person Claim, then the Seller shall be entitled to assume and control the defense of such claim at its expense and through counsel of their choice if they give notice of their intention to do so to the Indemnified Person within five (5) days of the receipt of such written acknowledgement by the Indemnified Person; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Person in its sole and absolute discretion for the same counsel to represent both the Seller and the Indemnified Person, then the Indemnified Person shall be entitled to retain its own counselcounsel in each jurisdiction for which the Indemnified Person determines counsel is required, at the expense of the Seller. In the event that the Seller exercise their right to undertake any such defense against any such Third Person Claim as provided herein, the Indemnified Person shall cooperate with fees the Seller in such defense and expenses paid make available to the Seller, at the Seller’ expense, all witnesses, pertinent records, materials and information in the Indemnified Person’s possession or under his control relating thereto as is reasonably required by the CompanySeller. Similarly, if representation of in the Breitling event the Indemnified Party by counsel retained Person is, directly or indirectly, conducting the defense against any such Third Person Claim, the Seller shall cooperate with the Indemnified Person in such defense and make available to the Indemnified Person, at the Seller’ expense, all such witnesses, records, materials and information in the Seller’ possession or under his control relating thereto as is reasonably required by the Company would Indemnified Person. No Third Person Claim may be inappropriate because of actual or potential differing interests between settled by the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, Seller without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandPerson.

Appears in 1 contract

Samples: Share Purchase Agreement (China Shen Zhou Mining & Resources, Inc.)

Notice of Claims. (ai) IfAny Indemnified Party seeking indemnification hereunder shall give promptly (and, at in any time on or prior event, within the applicable periods set forth in Section 9.1) to the Claims Deadline, any party obligated to provide indemnification to such Indemnified Party (an “Indemnitor”) a written notice (the “Notice of Claim”) describing in reasonable detail the Breitling Indemnified Parties shall assert a facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Notice of Claim (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Partybased; provided, however, that the failure of any Indemnified Party to give the Claim Notice promptly as required by this Section 9.3(a) shall not affect such Indemnified Party’s rights under this ARTICLE IX except to the extent (x) such failure is actually prejudicial to the rights and obligations of the Indemnitor or (y) such Notice of Claim is delivered after the expiration of the applicable periods set forth in Section 9.1. (ii) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this ARTICLE IX shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a Breitling 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 right burden of proof in establishing the amount of Losses suffered by it. All amounts due to retain its own counsel, with fees and expenses the Indemnified Party as so finally determined shall be paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling Indemnified Party agree to render to each other wire transfer within thirty (30) days after such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, suit or proceeding. The Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandfinal determination.

Appears in 1 contract

Samples: Merger Agreement (Tyler Technologies Inc)

Notice of Claims. (aEach party indemnified under Section 6(a) Ifor ---------------- Section 6(b) of this Agreement shall, at any time on or prior to the Claims Deadline, any promptly after receipt of notice of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1commencement of any action against such indemnified party in respect of which indemnity may be sought, such Breitling Indemnified Party shall submit to notify the Company a written claim indemnifying party in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate writing of the amount commencement thereof, enclosing a copy of all papers served on such indemnified party. The omission of any indemnified party so to notify an indemnifying party of any such Damages; (iiaction shall not relieve the indemnifying party from any liability in respect of 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 reasonable detailno 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 facts alleged 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 not be entitled to assume such defense. If an indemnifying party is not entitled to assume the defense of such action as a result of the basis proviso to the preceding sentence, counsel for such claim indemnifying party shall be entitled to conduct the defense of such indemnifying party and counsel for the section indemnified party shall be entitled to conduct the defense of such indemnified party or sections 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 alleged as for any legal or other expenses subsequently incurred by such indemnified party in connection with the basis or bases defense thereof other than reasonable costs of investigation. In no event shall the indemnifying party be liable for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by more than one counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In (in addition to local counsel) separate from its own counsel for all indemnified parties in connection with any action, suit one action or proceeding subject to Article V, separate but similar or related actions in the Company and each Breitling Indemnified Party agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense same jurisdiction arising out of such action, suit the same general allegations or proceedingcircumstances. The Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent indemnifying party shall not be unreasonably withheld liable for any settlement of any action or delayedproceeding effected without its written consent, settle but if settled with its written consent, or compromise if there be a final judgment for the plaintiff in any claim such action or demand if such proceeding, the indemnifying party shall indemnify and hold harmless the indemnified persons from and against any loss or liability by reason of the settlement or compromise does not include an irrevocable and unconditional release of such Breitling Indemnified Party for any liability arising out of such claim or demandjudgment.

Appears in 1 contract

Samples: Registration Rights Agreement (Seachange International Inc)

Notice of Claims. (a) If, at any time on Any Optionee Group Member or prior Seller Group Member seeking indemnification hereunder (the "Indemnified Party") shall give promptly to the Claims Deadline, any of party obligated to provide indemnification to such Indemnified Party (the Breitling Indemnified Parties shall assert "Indemnitor") a written notice (a "Claim Notice") describing in reasonable detail the facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurredany other agreement, the number of additional Common Shares to document or instrument executed hereunder or in connection herewith upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim based. The failure of the applicable Breitling any Indemnified Party to give the Claim Notice promptly as required by this Section 10.3 shall state the reasonable estimate of not affect such Damages, in which event a claim shall be deemed to have been asserted Indemnified Party's rights under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares X except to the Breitling Indemnified Persons pursuant extent such failure is actually prejudicial to Section 5.5 below shall be made until such Damages have actually been incurredthe rights and obligations of the Indemnitor. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Losses and expenses paid Expenses suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Option Agreement (Tv Azteca Sa De Cv)

Notice of Claims. (a) If, at any time on Any Optionee Group Member or prior Company Group Member (the “Indemnified Party”) seeking indemnification hereunder shall give to the Claims Deadline, party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice (a “Claim Notice”) describing in reasonable detail and in good faith the facts giving rise to any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to indemnification will be sought (each such Damages, which action or suit being a “Third Person Claim”) shall be determined as given promptly after the action or suit is commenced; provided in Section 5.5 below. If further that failure to give such notice shall not relieve the claim is for Damages which Indemnitor of its obligations hereunder except to the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party extent it shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article VI 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Option Agreement (Cephalon Inc)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior SBS Group Member seeking indemnification hereunder (the "Indemnified Party") shall give promptly to the Claims Deadline, any of party obligated to provide indemnification to such Indemnified Party (the Breitling Indemnified Parties shall assert "Indemnitor") a written notice (a "Claim Notice") describing in reasonable detail the facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known or estimable) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurredany other agreement, the number of additional Common Shares to document or instrument executed hereunder or in connection herewith upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim based. The failure of the applicable Breitling any Indemnified Party to give the Claim Notice promptly as required by this Section 9.3 shall state the reasonable estimate of not affect such Damages, in which event a claim shall be deemed to have been asserted Indemnified Party's rights under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares IX except to the Breitling Indemnified Persons pursuant extent such failure is actually prejudicial to Section 5.5 below shall be made until such Damages have actually been incurredthe rights and obligations of the Indemnitor. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article IX 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree in writing. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Losses and expenses paid Expenses suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Asset Purchase Agreement (Spanish Broadcasting System Inc)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Seller Group Member seeking indemnification hereunder (the “Indemnified Party”) shall give promptly to the Claims Deadline, any of Party obligated to provide indemnification to such Indemnified Party (the Breitling Indemnified Parties shall assert “Indemnitor”) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Partybased; provided, however, that the failure of any Indemnified Party to give the Claim Notice promptly as required by this Section 9.3(a) shall not affect such Indemnified Party’s rights under this Section 9 except to the extent such failure is materially prejudicial to the rights and obligations of the Indemnitor. Notwithstanding the foregoing, no claim for indemnification may be asserted against either Party for breach of any representation, warranty, covenant or agreement contained herein, unless a Breitling Claim Notice is received by such Party on or prior to the date on which the representation, warranty, covenant or agreement on which such claim is based ceases to survive as set forth in Section 12.1. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Section 9 shall be determined by the earlier to occur of: (i) the written agreement between the Indemnified Party and the Indemnitor; (ii) a final judgment or decree of any court of competent jurisdiction; or (iii) 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 right burden of proof in establishing the amount of Losses suffered by it. All amounts due to retain its own counsel, with fees and expenses the Indemnified Party as so finally determined shall be paid within thirty (30) days after such final determination by wire transfer of immediately available funds to an account or accounts designated in writing by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demand.

Appears in 1 contract

Samples: Asset Purchase and Sale Agreement (Majesco)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Seller Group Member seeking indemnification hereunder (the “Indemnified Party”) shall give promptly to the Claims Deadline, any of party obligated to provide indemnification to such Indemnified Party (the Breitling Indemnified Parties shall assert “Indemnitor”) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim based. The failure of the applicable Breitling any Indemnified Party to give the Claim Notice promptly as required by this Section 10.3 shall state the reasonable estimate of not affect such Damages, in which event a claim shall be deemed to have been asserted Indemnified Party’s rights under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares X except to the Breitling Indemnified Persons pursuant extent such failure is actually prejudicial to Section 5.5 below shall be made until such Damages have actually been incurredthe rights and obligations of the Indemnitor. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Losses and expenses paid Expenses suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Asset Purchase Agreement (New Media Investment Group Inc.)

Notice of Claims. You understand and agree that any claim(s) or complaint(s) arising out of or related to any alleged act or omission of Xxxxx & Associates in connecting with the Services shall be reported to us, in writing, within ten (a10) Ifbusiness days of discovery. Unless there is an emergency condition, at you agree to allow us a reasonable period of time to investigate the claim(s) or complaint(s) by, among other things, re-inspection before you, or anyone acting on behalf, repairs, replaces, alters or modifies the system or component that is the subject matter of the claim. You understand and agree that any failure to timely notify us and allow adequate time on or prior to investigate as stated above shall constitute a complete bar and waiver of any and all claims you may have against us related to the Claims Deadline, any of alleged act or omission unless otherwise prohibited by law. Arbitration - Any dispute concerning the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and the section or sections interpretation of this Agreement alleged as or arising from the basis Service and Report (unless based on payment of fee) shall be resolved by binding, non-appealable arbitration conducted in accordance with the rules of the American Arbitration Association, except that the parties shall mutually agree upon an Arbitrator who is familiar with the home inspection industry. Limitations Period - Any legal acton arising from this Agreement or bases for from the claim; Services and Report, including (iiibut not limited to) if the Damages have actually been incurredarbitration proceeding more specifically described above, must be commenced within one (1) year from the date of the Services. Failure to bring such an action within this time period shall be a complete bar to any such action and a full and complete waiver of any rights or claims based thereon. This time limitation period may be shorter than provided by state law. OTHER PROVISIONS: Severability and Entire Agreement - The parties agree that should an Arbitrator or Court determine that any provision(s) in this Agreement is void, voidable, or unenforceable, the number remaining portions shall remain in full force and effect. This Agreement (in its entirety), and any attached, executed Addenda, contains the entire Agreement between the parties, and there are no other representations, warranties, or commitments, except as are specifically set forth herein. This Agreement supersedes any and all representations or discussions, wether oral or written, if any, among the parties relating to the subject matter of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 belowthis Agreement. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe This Agreement may be incurred modified, altered or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, amended only if agreed to in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost writing and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid signed by the Company, parties. Xxxxxxx only if representation of the Breitling Indemnified Party by counsel retained agreed to in writing and signed by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Partyparties. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demand.FEE:

Appears in 1 contract

Samples: Home Inspection Agreement

Notice of Claims. (a) If, at Buyers or any time on or prior Seller Group Member seeking indemnification hereunder (the “Indemnified Party”) shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which indemnification will be sought shall be determined as provided in Section 5.5 below. If given promptly after the claim action or suit is for Damages which commenced (provided, however, that failure to give such notice shall not relieve the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, Indemnitor of its obligations hereunder except to the written claim of the applicable Breitling Indemnified Party extent it shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure). (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right burden of proof in establishing the amount of Loss and Expense suffered by it. (c) Losses to retain its own counselwhich an Indemnified Party shall be entitled hereunder shall not include exemplary, with fees and expenses paid by the Companypunitive, speculative, remote or consequential damages; provided that if representation an Indemnified Party is obligated to pay a third Person (other than an Affiliate of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual Party) damages which include exemplary, punitive, speculative, remote or potential differing interests between the Company consequential damages and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject Indemnitor is obligated under this Article XI to Article V, indemnify the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out Losses in respect of the matter giving rise to such claim or demanddamages, then Losses to which the Indemnified Party shall be entitled shall include such damages.

Appears in 1 contract

Samples: Asset Purchase Agreement (McGrath Rentcorp)

Notice of Claims. All claims for indemnification under this Agreement shall be resolved in accordance with the following procedures: (ai) If an indemnified party reasonably believes that it may incur any Losses, it shall deliver notice (a "Claim Notice") to the indemnifying party. If an indemnified party receives notice of a third-party claim for which it intends to seek indemnification hereunder, it shall give the indemnifying party prompt written notice of such claim, so that the indemnifying party's defense of such claim under Section 8(d) hereunder may be timely instituted. (ii) When Losses are actually incurred or paid by an indemnified party or on an indemnified party's behalf or otherwise fixed or determined, the indemnified party shall deliver a Payment Certificate to the indemnifying party for such Losses. If a Claim Notice or a Payment Certificate refers to any claim, action, suit, or proceeding made or brought by a third party, the Claim Notice or Payment Certificate shall include copies of the claim, any process served, and all legal proceedings with respect thereto. For purposes of clarification, an indemnified party shall not be required to make payment on any claim to receive indemnification rights under this Section 8. (iii) If, at any time on after receiving a Payment Certificate, the indemnifying party desires to dispute such claim or prior the amount claimed in the Payment Certificate, it shall deliver to the Claims Deadlineindemnified party a Counternotice as to such claim or amount. Such Counternotice shall be delivered within twenty (20) days after the date the Payment Certificate to which it relates is received by the indemnifying party. If no such Counternotice is received within the aforementioned 20-day period, any the indemnifying party shall be liable for the prompt payment of all Losses identified in the Breitling Indemnified Parties Payment Certificate. (iv) If, within twenty (20) days after receipt by the indemnified party of a Counternotice to a Payment Certificate, the parties shall assert a not have reached agreement as to the claim or amount in question, the claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided decided in accordance with the provisions of Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred15. (bv) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with With respect to any Losses based upon an asserted liability or obligation to a person or entity not a party to this Agreement for which the Company may have liability under this Article Vindemnification is being claimed, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf obligations of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent indemnifying party hereunder shall not be unreasonably withheld or delayed, settle or compromise reduced as a result of any action by the party furnishing the notice of third party claim or demand responding to such claim if such settlement action is reasonably required to minimize damages or compromise does not include an irrevocable and unconditional release of such Breitling Indemnified Party for any liability arising out of such claim to avoid a forfeiture or demandpenalty or to comply with a requirement imposed by law.

Appears in 1 contract

Samples: LLC Membership Interest Purchase Agreement (Vicom Inc)

Notice of Claims. (a) If, at any time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert Each Party against whom a claim for indemnification indemnity pursuant to this Section 5.15.3(c) shall have been made (each, an “Indemnifying Party”) shall have the right to defend the Person seeking such Breitling indemnity (each, an “Indemnified Party shall submit Party”) with counsel of such Indemnifying Party’s choice in respect of any third party claim, so long as (i) such counsel is reasonably satisfactory to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) the Indemnifying Party shall have provided written notice to the Indemnified Party, within thirty (30) days after receipt by the Indemnifying Party of the related Claims Notice, indicating that the Indemnifying Party will indemnify the Indemnified Party in reasonable detail, accordance with the facts alleged as the basis for such claim and the section or sections terms of this Agreement alleged as the basis or bases for the claim; Section 5.3 and (iii) if the Damages have actually been incurred, Indemnifying Party conducts the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim defense of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a third party claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost matter actively and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling diligently. The Indemnified Party shall have the right to retain separate co-counsel at its own counsel, with fees sole cost and expenses paid by expense and participate in the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandmatter. Knowledge by an Indemnified Party of any breach or non-compliance hereunder shall not constitute a waiver of such Indemnified Party’s rights and remedies under this Agreement, provided that such Indemnified Party shall have notified the applicable Indemnifying Party of such breach or non-compliance in a timely manner. No express or implied waiver by an Indemnified Party of any default hereunder shall in any way be, or be construed to be, a waiver of any other default. The failure or delay of an Indemnified Party to exercise any of its rights granted hereunder regarding any default shall not constitute a waiver of any such right as to any other default, and any single or partial exercise of any particular right granted to an Indemnified Party hereunder shall not exhaust the same or constitute a waiver of any other right provided herein.

Appears in 1 contract

Samples: Master Loan Servicing Agreement (LendingClub Corp)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Seller Group Member (the "INDEMNIFIED PARTY") seeking indemnification hereunder shall give to the Claims Deadline, party or parties 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder (together with any available supporting documentation) and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which indemnification will be sought shall be determined as provided in Section 5.5 below. If given promptly after the claim action or suit is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredcommenced. (b) Losses shall not include any special, indirect, incidental or consequential damages. In calculating any Loss or Expense there shall be deducted (i) any tax benefits actually realizable by the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which and its Affiliates (after taking into account all increases in federal, state, local, foreign or other Taxes payable by the Company may have liability under this Article V, the Company shall have the right, at Indemnified Party and its cost and expense, to defend such action, suit or proceeding in the name and on behalf Affiliates as a result of the Breitling receipt of any indemnification payment hereunder (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 PartyParty at any time), (ii) any related insurance proceeds net of premium insurance reasonably anticipated to result therefrom and (iii) proceeds and amounts from third parties (regardless of when received but only if actually received), in each case with clauses (i), (ii) and (iii) in connection with or as a result of such Losses; provided, however, that no right of subrogation shall accrue to any insurer or third party hereunder. (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 shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a Breitling 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 in writing. 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 right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Asset Purchase Agreement (Ecc International Corp)

Notice of Claims. (a) IfAny Purchaser Related Party or Seller Related Party, at as the case may be (the “Indemnified Party”), seeking indemnification hereunder (or believing in good faith that it may suffer or incur Losses for which it is or may be entitled to indemnification hereunder) shall give the party obligated to provide indemnification hereunder (the “Indemnitor”) a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1hereunder and shall include in such Claim Notice, such Breitling Indemnified Party shall submit to if reasonably practicable, the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to indemnification will be sought (each such Damages, which action or suit being a “Third Person Claim”) shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of given promptly after the applicable Breitling Indemnified Party receives actual notice that the action or suit is commenced; provided, further, that failure to give such notice shall state not relieve the reasonable estimate Indemnitor of such Damages, in which event a claim its obligations hereunder except to the extent the Indemnitor shall be deemed to have been asserted under this Article V in the amount of actually prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling Indemnified Party with respect the amount of indemnification to which the Company may have liability applicable Indemnified Party shall be entitled under this Article VX shall be determined: (i) by the written agreement between the applicable Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court or arbitrator of competent jurisdiction; or (iii) by any other means to which the applicable Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party no appeal shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual been taken or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company when all appeals taken shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandhave been finally determined.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Altra Industrial Motion Corp.)

Notice of Claims. (a) If, at any time on Any Buyer Indemnitee or prior Seller Indemnitee (the "Indemnified Party") seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged or any agreement, document or instrument executed 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which indemnification will be sought shall be determined as provided in Section 5.5 below. If given promptly after the claim action or suit is for Damages which commenced; provided, further, that failure to give such notice shall not relieve the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, Indemnitor of its obligations hereunder except to the written claim of the applicable Breitling Indemnified Party extent it shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of materially prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect to which the Company may have liability shall be entitled under this Article VIX 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 an arbitration award entered pursuant to Section 9.5. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling 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) If an Indemnified Party is entitled to indemnification hereunder, the Indemnitor shall pay to the Indemnified Party the amount to which the Indemnified Party is entitled promptly after the amount has been determined. Buyer shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation offset any such amount against any portion of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling Indemnified Party agree to render to each other such assistance Purchase Price not yet paid as may reasonably be required in order to ensure proper and adequate defense of such action, suit or proceeding. The Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demanddate.

Appears in 1 contract

Samples: Asset Purchase Agreement (First Montauk Financial Corp)

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Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert Seller Group Member making a claim for indemnification pursuant under this Article IX is referred to Section 5.1as the “Indemnified Party”, and the party against whom such Breitling claims are asserted under this Article IX is referred to as the “Indemnitor”. (a) Any Indemnified Party seeking indemnification hereunder shall submit give to the Company Indemnitor a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any claim for indemnification hereunder and shall include in good faith signed by an authorized officer such Claim Notice (if then known) the amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged or any other Acquisition Document, 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to indemnification will be sought (each such Damages, which action or suit being a “Third Person Claim”) shall be determined as provided given reasonably promptly after the action or suit is commenced, but in Section 5.5 below. If any event not later than thirty (30) days after receipt of, or becoming aware of, such Third Party Claim; provided, further, that failure to give such notice shall not relieve the claim is for Damages which Indemnitor of its obligations hereunder except to the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party extent it shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of materially prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article IX 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 Company Indemnified Party and the Indemnitor may agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have liability under expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. Promptly after the determination of the amount of indemnification pursuant to this Article VSection 9.04(b), the Company Indemnitor shall have the right, at its cost and expense, to defend satisfy such action, suit or proceeding amount in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling Indemnified Party agree to render to each other such assistance as may reasonably be required manner provided in order to ensure proper and adequate defense of such action, suit or proceeding. The Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandSection 9.03.

Appears in 1 contract

Samples: Asset Purchase Agreement (Cedar Fair L P)

Notice of Claims. (a) If, at any time on or prior Parent shall promptly give to the Claims Deadline, Stockholder Agent a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any of the Breitling Indemnified Parties shall assert a claim claims for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged or any agreement, certificate or instrument executed 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which indemnification will be sought shall be determined as provided in Section 5.5 below. If given promptly after the claim action or suit is for Damages which commenced; provided, further, that failure to give such notice shall not relieve the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, stockholders of their obligations hereunder except to the written claim of the applicable Breitling Indemnified Party extent it shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) The Stockholder Agent shall have thirty (30) days after the giving of any Claim Notice pursuant hereto to (i) agree to the amount or method of determination set forth in the Claim Notice and notify the Parent to release the amount of Escrow Stock and Escrow Cash (pro rata to the value of Escrow Stock and escrow cash, if any, in the Escrow) or (ii) to provide such Indemnified Person with notice that it disagrees with the amount or method of determination set forth in the Claim Notice (the “Dispute Notice”). Within fifteen days after the giving of the Dispute Notice, Stockholder Agent and such Indemnified Party shall negotiate in a bona fide attempt to resolve the matter. In the event that any action, suit or proceeding the controversy is brought against any Breitling Indemnified Party with respect to which not resolved within thirty (30) days of the Company may have liability under this Article Vgiving of the Dispute Notice, the Company parties shall have proceed to binding arbitration pursuant to the rightarbitration procedures set forth in Section 9.1 hereof. For purposes of Section 8, each Escrow Share will be valued at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandClosing Price.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Silicon Image Inc)

Notice of Claims. (a) IfIn the event Purchaser or Seller seeks indemnification hereunder (such Party, at any time on or prior an “Indemnified Party”) such Party shall give promptly to the Claims Deadline, any of Party obligated to provide indemnification to such Indemnified Party (the Breitling Indemnified Parties shall assert “Indemnitor”) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurredany other agreement, the number of additional Common Shares to document or instrument executed hereunder or in connection herewith upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Partybased; provided, however, that the failure of any Indemnified Party to give the Claim Notice promptly as required by this Section 10.3 shall not affect such Indemnified Party’s rights under this Article X except to the extent such failure is actually prejudicial to the Indemnitor’s defense of such 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 X shall be determined: (i) by written agreement between the Indemnified Party and the Indemnitor; (ii) by a Breitling 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 in writing. 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 right burden of proof in establishing the amount of Losses suffered by it. All amounts due to retain its own counsel, with fees and expenses the Indemnified Party as so finally determined shall be paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling Indemnified Party agree to render to each other wire transfer within thirty (30) days after such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, suit or proceeding. The Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandfinal determination.

Appears in 1 contract

Samples: Master Purchase Agreement (International Rectifier Corp /De/)

Notice of Claims. Any Buyer Group Member seeking indemnification from XxXxxxxxx pursuant to this Section (a5) If, at shall give to XxXxxxxxx a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the provision of this Agreement, the facts alleged as the basis for Merger Agreement and any other agreement, document or instrument upon which such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Partybased; provided, however, that a Breitling Indemnified Party 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. After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which the applicable Buyer Group Member shall be entitled under this Section (5) shall be determined: (i) by written agreement between Buyer and XxXxxxxxx; (ii) arbitration in accordance with Section 8.15 of the Merger Agreement; or (iii) by any other means to which Buyer and XxXxxxxxx 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 applicable Buyer Group Member shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Share Exchange and Voting Agreement (Rotonics Manufacturing Inc/De)

Notice of Claims. (a) IfAny Parent Group Member or Securityholder Group Member, at as the case may be (the “Indemnified Party”) seeking indemnification hereunder shall, within thirty (30) days after the Indemnified Party has actual knowledge of any time on or prior claim that it has under this Article VIII, give to the Claims Deadline, any of party obligated to provide indemnification to such Indemnified Party (the Breitling Indemnified Parties shall assert “Indemnitor”) written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to such claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to indemnification will be sought (each such Damages, which action or suit being a “Third Person Claim”) shall be determined as given promptly after any action or suit is commenced; provided in Section 5.5 below. If further that failure to give such notice shall not relieve the claim is for Damages which Indemnitor of its obligations hereunder except to the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party extent it shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article VIII shall be determined (i) by the written agreement between the Indemnified Party and the Indemnitor (provided that if any Indemnified Party or any Indemnitor is a Securityholder Group Member, such written agreement shall be executed by the Securityholder Representative on behalf of such Indemnified Party or Indemnitor); (ii) pursuant to Section 9.19 and, if necessary, Section 9.20; or (iii) by any other means to which the Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree (provided that if any Indemnified Party or any Indemnitor is a Securityholder Group Member, such written agreement shall be executed by the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and Securityholder Representative on behalf of the Breitling Indemnified Party; provided, however, that a Breitling such Indemnified Party or Indemnitor). The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have the right to retain its own counsel, with fees expired and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual no appeal shall have been taken or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company when all appeals taken shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandhave been finally determined.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Navigant Consulting Inc)

Notice of Claims. (a) If, at any time on Any Shareholder Indemnitee or prior Buyer Indemnitee seeking indemnification hereunder (the “Indemnified Party”) shall give promptly to the Claims DeadlineParty obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) (it being understood, any of however, that where the Breitling Shareholders would otherwise be Indemnified Parties or Indemnitors, all references to such term as used in the procedural provisions of this Section 10.4(a) and in Section 10.4(b) shall assert instead refer to the Shareholders) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurredany other agreement, the number of additional Common Shares to document or instrument executed hereunder or in connection herewith upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Partybased; provided, however, that a Breitling the failure of any Indemnified Party to give the Claim Notice promptly as required by this Section 10.4(a) shall not affect such Indemnified Party’s rights under this Article 10 except to the extent such failure is actually 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 shall be entitled under this 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. All amounts due to the right to retain its own counsel, with fees and expenses Indemnified Party as so finally determined shall be paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling Indemnified Party agree to render to each other wire transfer within five (5) Business Days after such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, suit or proceeding. The Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandfinal determination.

Appears in 1 contract

Samples: Stock Purchase Agreement (Sm&A)

Notice of Claims. (a) If, at any time on or prior Any party (the “Indemnitee”) seeking indemnification hereunder shall give to the Claims Deadline, party obligated to provide indemnification to such Indemnitee (the “Indemnitor”) a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and a reference to the section or sections provision of this Agreement alleged or any other agreement, document, or instrument executed hereunder or in connection herewith upon which such claim is based. A Claim Notice in respect of any action at law or suit in equity by or against a third person as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which indemnification will be sought shall be determined as provided in Section 5.5 below. If given promptly after the claim action or suit is for Damages which commenced, but failure to give such notice shall not relieve the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, Indemnitor of its obligations hereunder except to the written claim of extent that the applicable Breitling Indemnified Party Indemnitor shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnitee shall be entitled under this Article 12 shall be determined: (i) by written agreement between the Indemnitee and the Indemnitor; (ii) by a final decision of the arbitrator in an arbitration conducted pursuant to section 13.2; (iii) by a final judgment or decree of any court of competent jurisdiction; or (iv) by any other means to which the Indemnitee and the Indemnitor shall agree. The decision of an arbitrator or 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 Indemnitee shall have the burden of proof in establishing the amount of Losses suffered by it. (c) In calculating any Loss there shall be deducted any insurance recovery in respect thereof and, to the event extent permitted by the applicable insurance policy, the Indemnitee shall secure a waiver of all rights of subrogation of any insurer. Any Indemnitee shall be entitled to indemnification in respect of any Loss notwithstanding the availability of and before the receipt of the proceeds of any insurance claim, but the Indemnitee shall promptly pay over to the Indemnitor any insurance proceeds subsequently received that any action, suit or proceeding is brought against any Breitling Indemnified Party relate to the Loss with respect to which the Company may have liability under this Article V, Indemnitor has previously indemnified the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandIndemnitee.

Appears in 1 contract

Samples: Asset Purchase Agreement (Tessco Technologies Inc)

Notice of Claims. (a) If, at If a Purchaser Party or a Seller Party believes that it has suffered or incurred any time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification Damages pursuant to Section 5.111.1 or Section 11.2 hereof, such Breitling Indemnified Party it shall submit to so notify the Company a written claim Person from which it is seeking indemnification promptly in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating writing (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the describing in reasonable estimate of the amount of any detail such Damages; (ii) the amount thereof, if known; (iii) any complaints, subpoena or other documents served against the indemnified person in reasonable detail, the facts alleged as the basis for connection with such claim and the section or sections of this Agreement alleged as the basis or bases for the claimDamages; and (iiiiv) if the Damages have actually been incurred, the number method of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate computation of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In If any legal proceeding shall be instituted or in the event that any action, suit claim or proceeding demand shall be asserted by any person in respect of which indemnification may be sought from a Party to this Agreement that is brought against any Breitling Indemnified Party with respect required to which provide indemnification pursuant to the Company may have liability under this Article Vprovisions of Section 11.1 or Section 11.2 hereof (the "Indemnitor"), the Company Party seeking indemnification (the "Indemnitee") shall, to the extent of its knowledge thereof, cause prompt written notice of the commencement of such proceeding or the assertion of such claim or demand to be given to the Indemnitor, and the Indemnitor shall have the right, to the extent of its indemnification, at its cost option and at its own expense, to defend conduct and control the defense of such action, suit claim or proceeding in the name and on behalf of the Breitling Indemnified Partydemand; provided, however, that a Breitling Indemnified Party the failure by the Indemnitee to give prompt notice shall not release the Indemnitor of its indemnification obligations hereunder, except to the extent such failure actually prejudices the Indemnitor. If the Indemnitor does not so assume control, the Indemnitee shall have the right to retain its own counseldefend, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not be unreasonably withheld or delayedcontest, settle or compromise any such claim or demand if defend in the exercise of its exclusive discretion, and the Indemnitor shall, upon request from any Indemnitee, promptly pay to such Indemnitee in accordance with the other terms of this Article 12 the amount of any Damages. If the Indemnitor does assume control, the Indemnitor shall have the right to undertake, conduct and control, through counsel of its own choosing and at its sole expense, the conduct and settlement or compromise does not include an irrevocable and unconditional release of such Breitling Indemnified Party for any liability arising out of such claim or demand, and the Indemnitee shall cooperate with the Indemnitor in connection therewith.

Appears in 1 contract

Samples: Asset Purchase Agreement (Tarpon Industries, Inc.)

Notice of Claims. (a) If, at any time on or prior a. Any party seeking indemnification hereunder shall deliver to the Claims Deadlineparty obligated to provide indemnification to such party a notice (“Claim Notice”) reasonably promptly, describing in reasonable detail the facts giving rise to any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of such claim, and a reference to the provision of this Agreement upon which such claim is based. The party obligated to provide indemnification shall have thirty (30) days in which to provide a response. If the party seeking indemnification fails to provide the Claim Notice with reasonable promptness after such party receives notice of such claim, the other party will not be obligated to indemnify the party seeking indemnification with respect to such claim to the extent that the other party’s ability to defend has been irreparably prejudiced by such failure of the party seeking indemnification. b. After the giving of any such DamagesClaim Notice pursuant hereto, the amount of indemnification to which party seeking indemnification shall be entitled under this Section shall be determined: (i) by the written agreement between the parties; (ii) in reasonable detailby a final judgment or decree of any court of competent jurisdiction or an arbitration proceeding, the facts alleged as the basis for such claim and the section applicable; or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to by any other means which the Breitling Indemnified Parties are entitled to with respect to such Damages, which parties shall be determined as provided in Section 5.5 belowagree. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred The judgment or are otherwise un-liquidated, the written claim decree of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim court or arbitrator shall be deemed to final when the time for appeal, if any, shall have expired and no appeal shall have been asserted under this Article V taken or when all appeals taken shall have been finally determined. The party seeking indemnification shall have the burden of proof in establishing the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredloss and expense suffered by it. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demand.

Appears in 1 contract

Samples: Asset Purchase Agreement (Atomic Paintball Inc)

Notice of Claims. (ai) If, at any time If CGSI seeks indemnification hereunder it shall give the Representative on or prior to the Claims Deadline, any behalf of the Breitling Indemnified Parties shall assert Creditor (the "Indemnitor") a notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of such claim, and a reference to the provision of this Agreement or any agreement, document or instrument executed pursuant hereto or in connection herewith upon which such Damagesclaim 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 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. (ii) in reasonable detailAfter the giving of any Claim Notice pursuant hereto, the facts alleged as amount of indemnification to which CGSI shall be entitled shall be determined: (A) by the basis written agreement between the Representative and CGSI; or (B) by a final judgment or decree of any court of competent jurisdiction. The judgment or decree of a court shall be deemed final when the time for such claim appeal, if any, shall have expired and the section no appeal shall have been taken or sections of this Agreement alleged as the basis or bases for the claim; and when all appeals taken shall have been finally determined. (iii) if If CGSI is entitled to indemnification hereunder, and the Damages have actually been incurred, the number amount of additional Common Shares indemnification to which the Breitling Indemnified Parties are CGSI is entitled to with respect to such Damages, which shall be has been determined as provided for this Section 3, CGSI shall satisfy such claim from the Escrow Shares in Section 5.5 below. If accordance with the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim terms of the applicable Breitling Indemnified Party shall state the reasonable estimate Escrow Agreement. For purposes of such Damagesthis Indemnification Agreement , in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company an Escrow Share shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf a value of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demand$1.35.

Appears in 1 contract

Samples: Creditor Waiver and Consent Agreement (Capital Growth Systems Inc /Fl/)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Seller Group Member (the “Indemnified Party”) seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate 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 Damagesclaim is based; 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) in reasonable detail, failure to give such notice shall not relieve the facts alleged as Indemnitor of its obligations hereunder except to the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which extent it shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (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 event that amount of any action, suit or proceeding is brought against any Breitling 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 the Company may have liability an Indemnified Party shall be entitled under this Article VIX 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, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party no appeal shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual been taken or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company when all appeals taken shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandhave been finally determined.

Appears in 1 contract

Samples: Stock Purchase Agreement (Babyuniverse, Inc.)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Emmis Group Member seeking indemnification hereunder (the “Indemnified Party”) shall give promptly to the Claims Deadline, any of party obligated to provide indemnification to such Indemnified Party (the Breitling Indemnified Parties shall assert “Indemnitor”) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate 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 Damagesclaim is based. The failure of any Indemnified Party to give the Claim Notice promptly as required by this Section 9.3 shall not affect such Indemnified Party's rights under this Article ----------- -------- IX except to the extent such failure is actually 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 shall be entitled under this Article IX shall be determined: (i) by the written agreement between the Indemnified Party ---------- and the Indemnitor; (ii) in reasonable detail, the facts alleged as the basis for such claim and the section by a final judgment or sections decree of this Agreement alleged as the basis any court of competent jurisdiction; or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares by any other means to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party and the Indemnitor shall state the reasonable estimate agree in writing. The judgment or decree of such Damages, in which event a claim court shall be deemed to final when the time for appeal, if any, shall have expired and no appeal shall have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit taken or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company when all appeals taken shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Losses and expenses paid Expenses suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Asset Purchase Agreement (Emmis Operating Co)

Notice of Claims. (a) IfAny Buyer Group Member or Sellers Group Member (each, at any time on an “Indemnified Party”) seeking indemnification hereunder (or prior believing in good faith that it may suffer or incur Losses or Expenses for which it is or may be entitled to indemnification hereunder) shall give to the Claims Deadline, party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) prompt notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, copies of all written evidence thereof, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to indemnification will be sought (each such Damages, which action or suit being a “Third Person Claim”) shall be determined as provided given promptly after the action or suit is commenced and in Section 5.5 below. If any event not later than 30 days after the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate receives written notice of such Damages, in which event a claim Third Person Claim; provided further that failure to give such notice shall be deemed not relieve the Indemnitor of its obligations hereunder except to the extent the Indemnitor shall have been asserted under this Article V in the amount of actually prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) pursuant to Section 13.15; or (iii) by any other means to which the Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party no appeal shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual been taken or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company when all appeals taken shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandhave been finally determined.

Appears in 1 contract

Samples: Equity Purchase Agreement (Kapstone Paper & Packaging Corp)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Seller Group Member (the "Indemnified Party") seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which indemnification will be sought shall be determined as given promptly after the action or suit is commenced; provided in Section 5.5 below. If further that failure to give such notice shall not relieve the claim is for Damages which Indemnitor of its obligations hereunder except to the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party extent it shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article 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; or (iii) by any other means to which the Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Asset Purchase Agreement (Navigant Consulting Inc)

Notice of Claims. (a) If, at Any Buyer Group Member or Tribune Group ---------------- Member (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 time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which indemnification will be sought shall be determined as provided in Section 5.5 below. If given promptly after the claim action or suit is for Damages which commenced; provided, that failure to give such notice shall not -------- relieve the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, Indemnitor of its obligations hereunder except to the written claim of extent the applicable Breitling Indemnified Party Indemnitor shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under prejudiced by such failure (it being understood that this Article V proviso does not modify or otherwise affect the time periods specified in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred.Sections 12.1 and 12.2). ------------- ---- (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). (c) After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Stock Purchase Agreement (Farm Journal Corp)

Notice of Claims. (a) If, at any time on or prior Any Buyer Group Member (the “Indemnified Party”) seeking indemnification hereunder shall give to the Claims Deadline, Sellers' Representative (the “Indemnitor”) a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate 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 Damagesclaim is based; 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) in reasonable detail, failure to give such notice shall not relieve the facts alleged as Indemnitor of its obligations hereunder except to the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which extent it shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (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 event that amount of any action, suit or proceeding is brought against any Breitling 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 the Company may have liability an Indemnified Party shall be entitled under this Article V10 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, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Stock Purchase Agreement (Global Med Technologies Inc)

Notice of Claims. (a) If, at With respect to any time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, matter as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which any person or entity (the Breitling "Indemnified Parties are Person") is entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If indemnification from any other person or entity (the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted "Indemnifying Person") under this Article V in VIII, the amount of such estimated DamagesIndemnified Person shall have the right, but no distribution not the obligation, to contest, defend or litigate, and to retain counsel of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that its choice in connection with, any claim, action, suit or proceeding is brought by any third party alleged or asserted against any Breitling the Indemnified Party with Person in respect of, resulting from, relating to which or arising out of such matter, and the Company may have liability under this Article V, costs and expenses thereof shall be subject to the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf indemnification obligations of the Breitling Indemnified PartyIndemnifying Person hereunder; provided, however, that a Breitling if the Indemnifying Person acknowledges in writing its obligation to indemnify the Indemnified Party Person in respect of such matter to the fullest extent provided by this Article VIII, the Indemnifying Person shall have be entitled, at its option, to assume and control the right to retain its own counseldefense of such claim, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject at its expense through counsel of its choice if it gives prompt notice of its intention to Article Vdo so to the Indemnified Person. Neither an Indemnified Person nor an Indemnifying Person shall be entitled to settle or compromise any such claim, the Company and each Breitling 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 Company shall not, proceeding without the prior written consent of the applicable Breitling other party hereto (and for purposes of this provision the "other party hereto" shall be: (A) NHTC, for any Indemnified PartyPerson or Indemnifying Person who is an NHTC Indemnified Person, and (B) one or more of the Attorneys, for any Indemnified Person or Indemnifying Person who is a Company Indemnified Person), which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandwithheld.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Natural Health Trends Corp)

Notice of Claims. (a) If, at any time on or prior Any party (the "Indemnified Party") seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and a reference to the section or sections provision of this Agreement alleged upon which such claim is based; provided, that a Claim Notice in respect to any action at law or suit in equity by or against a Third Person as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which indemnification will be sought shall be determined as given promptly after the action or suit is commenced; and, provided further that failure to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent that the Indemnitor shall have been prejudiced by such failure (it being understood that this proviso does not modify or otherwise affect the applicable time period specified in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred7.1). (b) In calculating any Damages there shall be deducted (i) any insurance recoverable in respect thereof (and no right of subrogation shall accrue hereunder to any insurer) and (ii) any past, present or future tax benefit to the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect or their Affiliates or Subsidiaries. (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 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right burden of proof in establishing the amount of Damages suffered by it. (d) Any indemnification payments hereunder shall be deemed an adjustment to retain its own counsel, with fees and expenses paid by the Company, if representation of purchase price for the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandShares.

Appears in 1 contract

Samples: Stock Purchase Agreement (Anchor Holdings Inc)

Notice of Claims. (a) If, at any time on Any Indemnified Party seeking indemnification hereunder (or prior believing in good faith that it may suffer or incur Losses for which it is or may be entitled to indemnification hereunder) shall deliver to the Claims Deadline, any of the Breitling Indemnified Parties shall assert Indemnifying Party a written notice (a “Claim Notice”) describing in reasonable detail available facts giving rise to such claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim (if readily available) and a reference to the section or sections provision of this Agreement alleged as the basis or bases for the claimany other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based; and (iii) if the Damages have actually been incurredprovided, the number that a Claim Notice in respect of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which any Third Person Claim shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties given reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling promptly after an Indemnified Party has received written notice that the Proceeding has been commenced; provided further that failure to timely give such notice shall state not relieve the reasonable estimate Indemnifying Party of such Damages, in which event a claim its obligations hereunder except to the extent the Indemnifying Party shall be deemed to have been asserted under this Article V in the amount of actually and materially prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article VII shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnifying Party; (ii) by a final judgment or decree of any court or arbitrator of competent jurisdiction; or (iii) by any other means to which the Company may have liability under this Article VIndemnified Party and the Indemnifying Party shall agree in writing (each, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Partya “Final Resolution”); provided, however, that if a Breitling Indemnified Claim Notice does not involve a Third Person Claim and the Indemnifying Party does not dispute its liability for the claim described in such Claim Notice within twenty (20) calendar days following delivery of such Claim Notice, the Indemnifying Party will be conclusively deemed liable for the Losses arising from such claim. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have the right to retain its own counsel, with fees expired and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual no appeal shall have been taken or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company when all appeals shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandhave been finally determined.

Appears in 1 contract

Samples: Equity Purchase Agreement (Twin River Worldwide Holdings, Inc.)

Notice of Claims. (a) If, at any time on or prior Any party seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate 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 Damagesclaim is based; 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) in reasonable detail, failure to give such notice shall not relieve the facts alleged as Indemnitor of its obligations hereunder except to the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which extent it shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Share Purchase Agreement (China INSOnline Corp.)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Seller Group Member (the "Indemnified Party") seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate 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 Damagesclaim is based; 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) in reasonable detail, failure to give such notice shall not relieve the facts alleged as Indemnitor of its obligations hereunder except to the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which extent it shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of materially prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (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 event that amount of any action, suit or proceeding is brought against any Breitling 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 the Company may have liability an Indemnified Party shall be entitled under this Article VX 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, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right burden of proof in establishing the amount of Loss and Expense suffered by it. (d) Any indemnification payment hereunder with respect to retain its own counselany Loss or Expense shall be an amount which is sufficient to compensate the indemnified party for the amount of such Loss or Expense, with fees and expenses paid after taking into account all increases in federal, state, local, foreign or other Taxes payable by the Company, if representation indemnified party as a result of the Breitling Indemnified Party receipt of such payment (by counsel retained reason of such payment being included in income, resulting in a reduction of tax basis, or otherwise increasing such Taxes payable by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with indemnified party at any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandtime).

Appears in 1 contract

Samples: Stock Purchase Agreement (Aegis Consumer Funding Group Inc)

Notice of Claims. (a) If, at any time on or prior Any Parent Group Member seeking indemnification hereunder shall give to the Claims Deadline, any of Representative a written notice (a “Claim Notice”) describing in reasonable detail the Breitling Indemnified Parties shall assert a facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and a reference to the section or sections provision of this Agreement alleged or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based. A Claim Notice in respect of any action at law or suit in equity by or against a third Person as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which indemnification will be sought shall be determined given promptly after the action or suit is commenced. The failure of any Parent Group Member to give the Claim Notice promptly as provided in required by this Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party 11.2 shall state the reasonable estimate of not affect such Damages, in which event a claim shall be deemed to have been asserted Parent Group Member’s rights under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares XI except to the Breitling Indemnified Persons pursuant extent such failure is actually prejudicial to Section 5.5 below shall be made until such Damages have actually been incurredthe rights and obligations of the Representative. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit the amount of indemnification to which a Parent Group Member shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Parent Group Member and the Representative; (ii) by a final judgment or proceeding is brought against decree of any Breitling Indemnified Party with respect court of competent jurisdiction; (iii) by an Award; or (iv) by any other means to which the Company may have liability under this Article Vapplicable Parent Group Member and the Representative shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party no appeal shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual been taken or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company when all appeals taken shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandhave been finally determined.

Appears in 1 contract

Samples: Merger Agreement (Allscripts Healthcare Solutions Inc)

Notice of Claims. (a) IfAny Surviving Corporation Indemnified Party or SDI Indemnified Party (the "Indemnified Party") seeking indemnification hereunder shall, at any time on or prior within the relevant limitation period provided for in Section 8.1 above (and, to the Claims Deadlineextent applicable, Section 9.4 below), 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 of the Breitling Indemnified Parties shall assert a claim claims for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged or any agreement, certificate or instrument executed 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 basis action or bases for the claimsuit is commenced; and (iii) if provided further, that failure to give such notice shall not relieve the Damages have actually been incurred, Indemnitor of its obligations hereunder except to the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which extent it shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) Indemnitor shall have thirty days after the giving of any Claim Notice pursuant hereto to (i) 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) 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 days after the giving of the Dispute Notice, a representative of Indemnitor and such Indemnified Party shall negotiate in a bona fide attempt to resolve the matter. In the event that any action, suit or proceeding the controversy is brought against any Breitling Indemnified Party with respect to which not resolved within thirty days of the Company may have liability under this Article Vgiving of the Dispute Notice, the Company parties shall have proceed to binding arbitration pursuant to the rightfollowing procedures: (1) Any party may send another party written notice identifying the matter in dispute and invoking the procedures of this Section 8.5. 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 matter in dispute for final and binding arbitration. (2) If such parties fail to resolve the dispute by written agreement or agree on the arbitrator within said fourteen (14) day period, any such party may make written application to the American Arbitration Association ("AAA") for the appointment of a panel of three arbitrators (collectively, the "Arbitrator") to resolve the dispute by arbitration. At the request of AAA the parties involved in the dispute shall meet with AAA at its cost offices within ten calendar days of such request to discuss the dispute and expense, to defend such action, suit or proceeding in the name qualifications and on behalf of experience which each party respectively believes the Breitling Indemnified PartyArbitrator should have; provided, however, that the selection of the Arbitrator shall be the exclusive decision of AAA and shall be made within 30 days of the written application to AAA. (3) Within 120 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 Breitling Indemnified Party place and time designated by such Arbitrator 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 the AAA in effect on the date of the initial request by for appointment of the Arbitrator, that gave rise to the dispute to be arbitrated (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 present its position, the right to retain its entire proceedings before the Arbitrator shall be no more than ten consecutive days, and the decision of the Arbitrator shall be 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 prevailing party (as determined by the Arbitrator) shall in addition be awarded by the Arbitrator such party's own counsel, with attorneys' fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In in connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company non-prevailing party (as determined by the Arbitrator) shall not, without pay the prior written consent of the applicable Breitling Indemnified Party, which consent shall not be unreasonably withheld or delayed, settle or compromise any claim or demand if such settlement or compromise does not include an irrevocable Arbitrator's fees and unconditional release of such Breitling Indemnified Party for any liability arising out of such claim or demandexpenses.

Appears in 1 contract

Samples: Merger Agreement (Special Devices Inc /De)

Notice of Claims. (a) If, at Any Parent Indemnitee or Shareholder Indemnitee (the "INDEMNIFIED PARTY") seeking indemnification hereunder shall give 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 time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged or any agreement, document or instrument executed 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 the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which indemnification will be sought shall be determined as provided in Section 5.5 below. If given promptly after the claim action or suit is for Damages which commenced; PROVIDED FURTHER that failure to give such notice shall not relieve the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, Indemnitor of its obligations hereunder except to the written claim of the applicable Breitling Indemnified Party extent it shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect to which the Company may have liability shall be entitled under this Article VARTICLE IX shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; or (ii) by a final judgment or decree of any court of competent jurisdiction. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right burden of proof in establishing the amount of Loss and Expense suffered by it. (c) If a Parent Indemnity is entitled to retain its own counselindemnification hereunder, with fees and expenses paid by the Companyamount of indemnification to which Parent Indemnitee is entitled has been determined as provided for in SECTION 9.4(b), if representation the Shareholders may satisfy such claim, at the option of the Breitling Indemnified Party Shareholders, by counsel retained by promptly tendering (i) cash or (ii) shares of Preferred Stock (or that number of shares of common stock into which the Company would be inappropriate because Preferred Stock was converted) or shares common stock of actual or potential differing interests between Parent issued to Shareholders hereunder Parent Indemnitee. For purposes of this ARTICLE IX, a share of Preferred Stock shall have a value of $1,000, and a share of common stock issued in satisfaction of an Award shall have the Company and Current Share Value assigned to it hereunder. If a Shareholder Indemnitee is entitled to indemnification hereunder, Parent shall pay to Shareholder Indemnitee the Breitling Indemnified Party. In connection with any action, suit or proceeding subject amount of indemnification to Article V, the Company and each Breitling Indemnified Party agree to render to each other such assistance which Shareholder Indemnitee is entitled promptly after it has been determined as may reasonably be required provided for in order to ensure proper and adequate defense of such action, suit or proceeding. The Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandSECTION 9.4(b).

Appears in 1 contract

Samples: Merger Agreement (Xechem International Inc)

Notice of Claims. (aEach party indemnified under Section 4(a) Ifor Section 4(b) shall, at any time on or prior to the Claims Deadline, any promptly after receipt of notice of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1commencement of any action against such indemnified party in respect of which indemnity may be sought, such Breitling Indemnified Party shall submit to notify the Company a written claim indemnifying party in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate writing of the amount commencement thereof, enclosing a copy of all papers served on such indemnified party. The omission of any indemnified party so to notify an indemnifying party of any such Damages; (ii) action shall not relieve the indemnifying party from any liability in reasonable detail, the facts alleged as the basis for respect of such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages action which it may have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damagesindemnified party on account of the indemnity agreement contained in Section 4(a) or Section 4(b), 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 determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which indemnified party and it shall notify an indemnifying party of the Company may have liability under this Article Vcommencement thereof, the Company indemnifying party shall have the right, at its cost and expensebe entitled to participate therein and, to defend such actionthe extent that it may wish, suit or proceeding in jointly with any other indemnifying party similarly notified, to assume the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counseldefense 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 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 Section 4(c), such indemnifying party shall not be liable to such indemnified party under Section 4(a) or Section 4(b) 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 paid by the Company, if representation of the Breitling Indemnified Party by more than one counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In (in addition to local counsel) separate from its own counsel for all indemnified parties in connection with any action, suit one action of separate but similar or proceeding subject to Article V, related actions in the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability same jurisdiction arising out of such claim the same general allegations or demandcircumstances.

Appears in 1 contract

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

Notice of Claims. 10.3.1 If any Parent Group Member (a) If, at any time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to Section 10.1) or any Stockholder Group Member (with respect to Section 10.2) believes that it has suffered or incurred any Loss or incurred any Expense, such DamagesParent Group Member or Stockholder Group Member, which as the case may be (the "Indemnified Person"), shall so notify the parties obligated to provide indemnification to such Indemnified Person (the "Indemnitor") (which, in the event such notice is given by a Parent Group Member, shall be determined given to the Stockholders' Representative) promptly in writing describing such Loss or Expense, the amount thereof, if known, and the method of computation of such Loss or Expense, all with reasonable particularity and containing a reference to the provisions of this Agreement, any certificate delivered pursuant hereto, any Ancillary Agreement or any Parent Ancillary Agreement in respect of which such Loss or Expense shall have occurred (such written notification being sometimes hereinafter referred to as the "Claim Notice"); provided, however, that an omission by the Indemnified Person to give notice as provided in herein shall not relieve the Indemnitor of its indemnification obligation under this Section 5.5 below10 except to the extent that the Indemnitor is actually prejudiced by such action. If the claim any Action is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred instituted by or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event against a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party third party with respect to which the Company may have any Indemnified Person intends to claim any liability or expense as Loss or Expense under this Article VSection 10, such Indemnified Person shall promptly notify the Company Indemnitor (which, in the event such notice is given by a Parent Group Member, shall be given to the Stockholders' Representative) of such Action as specified in this Section 10.3. 10.3.2 The Indemnitor shall have the right, at its cost and expenseown cost, to defend such actionelect to assume the defense of any third-party claim, suit demand, lawsuit or other proceeding in connection with which the name and on behalf Indemnified Person has claimed indemnification hereunder (the "Election"), within fifteen (15) Business Days following notice thereof (which, in the event such notice is given by a Parent Group Member, shall be given to the Stockholders' Representative), upon its written unconditional acknowledgment of its obligation to indemnify the Breitling Indemnified Party; Person with respect to such claim, provided, however, that a Breitling Indemnified Party the choice of legal counsel to defend such claim shall have require the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified PartyPerson, which consent shall not be unreasonably withheld or delayed, provided further that, in the event there exists (a) a conflict or potential conflict between the interests of the Indemnitor and the Indemnified Person, or (b) additional defenses available to the Indemnified Person, the Indemnified Person shall be entitled to separate counsel, paid for by the Indemnitor. If the Indemnitor makes the Election, (i) it shall keep the Indemnified Person informed as to the status of such matter and shall promptly send copies of all pleadings to the Indemnified Person (which, in the event such notice or copies are given by a Parent Group Member, shall be given to the Stockholders' Representative), and (ii) with respect to any issue involved in such claim, it shall have the sole right, with respect to claims or portions of claims seeking monetary damages only, to settle or compromise any otherwise dispose of such claim on such terms as it, in its sole discretion, shall deem appropriate; provided, however, that the consent of the Indemnified Person to the settlement or demand disposition shall be required if such settlement or compromise disposition shall result in any liability to, equitable relief against, as admission of liability by, or adverse business effect on the Indemnified Person, which consent shall not be unreasonably withheld or delayed. If the Indemnitor does not include an irrevocable and unconditional release make the Election, the Indemnitor shall have the right to participate, at it own cost, in the defense of such Breitling claim, and the Indemnified Party for shall have the right to contest, compromise or settle such claim in the exercise of its reasonable judgment; provided, however, that the consent of the Indemnitor to any liability arising out compromise or settlement of such claim shall be required if such compromise or demandsettlement shall require any payment by the Indemnitor or otherwise result in any liability to the Indemnitor. 10.3.3 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 Person with respect to such Loss or Expense (after giving effect to the tax effect of receipt of the indemnification payments). 10.3.4 After the giving of any Claim Notice, the amount of indemnification to which an Indemnified Person shall be entitled under this Section 10 shall be paid within fifteen (15) days of receipt of the Claim Notice unless the Indemnitor has given written notice of a dispute in which case the claim for indemnification shall be made in accordance with the dispute resolution procedures of Section 10.6.

Appears in 1 contract

Samples: Merger Agreement (THQ Inc)

Notice of Claims. (a) If, at any time on Any Buyers Group Member or prior Seller Group Member seeking indemnification hereunder (the “Indemnified Party”) shall give promptly to the Claims Deadline, any of party obligated to provide indemnification to such Indemnified Party (the Breitling Indemnified Parties shall assert “Indemnitor”) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based. In addition, any Buyers Group Member seeking indemnification hereunder shall deliver a copy of the Claim Notice to the Escrow Agent concurrent with delivery of the Claims Notice to the Indemnitor. Except as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as otherwise provided in Section 5.5 below. If 10.1 or the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidatedHoldback Escrow Agreement, the written claim failure of any Indemnified Party to give the Claim Notice promptly as required by this Section 8.3(a) shall not affect such Indemnified Party’s rights under this Section 8 except to the extent such failure is actually prejudicial to the rights and obligations of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredIndemnitor. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Section 8 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right burden of proof in establishing the amount of Liabilities and Expenses suffered by it. In the case of any claim for indemnification made by any Buyers Group Member, the terms and provisions of the Holdback Escrow Agreement shall apply. All amounts due to retain its own counsel, with fees and expenses the Indemnified Party as so finally determined shall be paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling Indemnified Party agree to render to each other wire transfer within thirty (30) calendar days after such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, suit or proceeding. The Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandfinal determination.

Appears in 1 contract

Samples: Asset Purchase Agreement (Warren Resources Inc)

Notice of Claims. (a) If, at any time on or prior Any party seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate 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 Damagesclaim is based; 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) in reasonable detail, failure to give such notice shall not relieve the facts alleged as Indemnitor of its obligations hereunder except to the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which extent it shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article 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; or (iii) by any other means to which the Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Stock Purchase Agreement (Pacer Health Corp)

Notice of Claims. (a) IfIf 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, at any time on such Buyer Group Member or prior ACME Group Member, as the case may be (the "Indemnified Party"), shall so notify the parties obligated to provide indemnification to such Indemnified Party (the "Indemnitor") promptly in writing describing such Loss or Expense, the amount thereof, if known, and the method of computation of such Loss or Expense, all with reasonable particularity and containing a reference to the Claims Deadline, any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and the section or sections provisions of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number any certificate delivered pursuant hereto in respect of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred Loss or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company Expense shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Partyoccurred (a "Claim Notice"); provided, however, that the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnitor of its indemnification obligation under this Article X except to the extent that such omission results in a Breitling 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 promptly notify the Indemnitor of such action or suit as specified in this Section 10.3. (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 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 right to retain its own counsel, with fees burden of proof in establishing the amount of Losses and expenses paid Expenses suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Asset Purchase Agreement (Acme Communications Inc)

Notice of Claims. (a) IfAny Buyer Group Member or Seller Group Member, at any time on or prior as the case may be (the “Indemnified Party”), seeking indemnification hereunder shall promptly give to the Claims Deadline, party from whom it is seeking indemnification (the “Indemnitor”) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the provision of this Agreement, the facts alleged as Buyer Ancillary Agreement or the basis for Seller Ancillary Agreement upon which such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Partybased; provided, however, that a Breitling 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 after the action or suit is commenced; provided further, however, that failure to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been damaged or 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 VIII shall be evidenced (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) pursuant to Section 9.18 and, if necessary, Section 9.19; 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 right to retain burden of proof in establishing the amount of Loss or Expense suffered by it. (c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnitor, each Indemnified Party shall (i) reasonably cooperate with the Indemnitor in connection with the defense of any Third Person Claim and (ii) grant the Indemnitor and its own counsel, with fees experts and expenses paid by representatives reasonable access, during normal business hours, to the Companybooks, if representation records, personnel (including as witnesses or deponents at trial and during the discovery process) and properties of the Breitling Indemnified Party by counsel retained by to the Company would be inappropriate because extent reasonably related to the Claim Notice, in the case of actual or potential differing interests between clause (i) and (ii) above, at no cost to the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling Indemnified Party agree to render to each Indemnitor (other such assistance as may reasonably be required in order to ensure proper and adequate defense than for reasonable out of such action, suit or proceeding. The Company shall not, without the prior written consent pocket expenses of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandParties).

Appears in 1 contract

Samples: Asset Purchase Agreement (Navigant Consulting Inc)

Notice of Claims. (a) If, at any time on If Purchaser or prior to the Claims Deadline, XXXX believes that any of the Breitling Indemnified Parties persons indemnified under this Article 6 has suffered or incurred any Loss or incurred any Expense, Purchaser or XXXX shall assert so notify the other promptly in writing describing such Loss or Expense, the amount thereof, if known, and the method of computation of such Loss or Expense, all with reasonable particularity and containing a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit reference to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and the section or sections provisions of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss or Expense shall have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to occurred. If any action at law or suit in equity is instituted by or against a third party with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim any of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a indemnified persons intends to claim shall be deemed to have been asserted any liability or expense as Loss or Expense under this Article V in 6, any such indemnified person shall promptly notify the amount indemnifying party of such estimated Damagesaction or suit. The failure to give such prompt notice, but no distribution however, shall not bar a claim of additional Common Shares indemnification except to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until extent the indemnitor was actually prejudiced by such Damages have actually been incurreddelay. (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 event that amount of any action, suit or proceeding is brought against any Breitling Indemnified Party actual net tax benefit to the indemnified person with respect 32 to such Loss or Expense (after giving effect to the tax effect of receipt of the indemnification payments). The amount of such tax benefit to the indemnified person shall be conclusively evidenced by a certificate of the chief financial officer of the indemnified person, absent manifest error. (c) The amount to which an indemnified person shall be entitled under this Article 6 shall be determined by the written agreement between the indemnified person and the indemnifying party. If the parties are unable to agree upon such amount, the indemnifying party shall pay that amount agreed upon between the parties and the remainder shall be determined by a final judgment or decree of any court of competent jurisdiction upon an award of an arbitrator or arbitrators as provided in Section 7.11 or by any other means to which the Company may have liability under this Article Vindemnified person and the indemnifying party shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party no appeal shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual been taken or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandwhen all appeal taken have been finally determined.

Appears in 1 contract

Samples: Asset Purchase Agreement (Ladd Furniture Inc)

Notice of Claims. (a) If, at any time on Any Buyer Group Member or prior Seller Group Member (the “Indemnified Party”) seeking indemnification hereunder shall give to the Claims Deadlineparty obligated to provide indemnification (and if such party is the Company, to Parent as well) to such Indemnified Party (the “Indemnitor”), as soon as reasonably practicable, a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged 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 a third Person as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to indemnification will be sought (each such Damages, which action or suit being a “Third Person Claim”) shall be determined as given promptly after the action or suit is commenced or threatened in writing; provided in Section 5.5 below. If further that failure to give such notice shall not relieve the claim is for Damages which Indemnitor of its obligations hereunder except to the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party extent it shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party shall be entitled under this Article X shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor (and, if the Indemnitor is the Company, with respect the written agreement of Parent); (ii) by a final judgment or decree of any court of competent jurisdiction, (iii) by an Award; or (iv) by any other means to which the Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree (and, if the Company Indemnitor is the Company, with the written agreement of Parent). The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Asset Purchase Agreement (Orbotech LTD)

Notice of Claims. (a) If, at any time on or prior Each of Purchaser and Seller agrees to give prompt written notice to the Claims Deadlineother of any claim against the party giving notice which might give rise to a claim by it or them against the other party hereto based upon the indemnity provisions contained herein, any stating the nature and basis of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and the section actual or sections estimated amount thereof; provided, however, that failure to give such notice will not; -------- ------- affect the obligation of the indemnifying party to provide indemnification in accordance with the provisions of this Agreement alleged as the basis or bases for the claim; Article 7 unless, and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares only to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until extent that, such Damages have indemnifying party is actually been incurred. (b) prejudiced thereby. In the event that any action, suit or proceeding is brought against any Breitling member of the Indemnified Party Seller Group or the Indemnified Purchaser Group with respect to which the Company any party hereto may have liability under this Article Vthe indemnification provisions contained herein, the Company indemnifying party shall have the rightduty, at his or its sole cost and expense, to defend such action in the name or on behalf of the indemnified party and, in connection with any such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article Vproceeding, the Company and each Breitling Indemnified Party parties hereto agree to render to each other such assistance as may reasonably be required in order to ensure the proper and adequate defense of any such action, suit or proceeding; provided, however, that an indemnified party shall -------- ------- have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate because of actual or potential differing interests between such indemnified party and any other party represented by such counsel. The Company If the indemnifying party shall notundertake to defend such action, suit or proceeding, or to compromise any such asserted liability, it shall promptly notify the indemnified party of its intention to do so and provide the indemnified party with reasonable assurance as to the ability of the indemnifying party to defend or compromise, as the case may be, such matter which, with respect to Seller as indemnifying party, shall include reasonable assurance that Seller has and will have the financial capability to pay any judgment or compromise resulting from such asserted liability. Neither party hereto shall make any settlement of any claim which might give rise to liability of the other party under the indemnification provisions contained herein without the prior written consent of the applicable Breitling Indemnified Partysuch other party, which consent such other party covenants shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandwithheld.

Appears in 1 contract

Samples: Asset Purchase Agreement (Warner Insurance Services Inc)

Notice of Claims. (a) IfEither of the Seller on one hand, at any time and the Purchaser on or prior the other (each, the “Indemnified Party”) seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detail, the facts alleged as the basis for such claim and a reference to the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurredany other agreement, the number of additional Common Shares to document, or instrument executed hereunder or in connection herewith upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which claim is based. A Claim Notice shall be determined as provided in Section 5.5 below. If given promptly after the claim action or suit is for Damages which commenced, but failure to give such notice shall not relieve the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, Indemnitor of its obligations hereunder except to the written claim of extent that the applicable Breitling Indemnified Party Indemnitor shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling subject to the terms and conditions contained herein, the amount of indemnification to which an Indemnified Party shall be entitled under this Section 10 shall be determined: (i) by 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 in writing. 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 Losses or Expenses there shall be deducted any insurance recovery in respect thereof (and to the extent permitted by the applicable insurance policy, the Indemnified Party shall waive all rights of subrogation of any insurer). Any Indemnified Party shall be entitled to receive indemnification in respect of any Losses or Expenses before the receipt of the proceeds of any available insurance claim, provided that the Indemnified Party shall promptly pay over to the Indemnitor any insurance proceeds relating to the Losses or Expenses with respect to which the Company may have liability under this Article V, Indemnitor has previously indemnified the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demand.

Appears in 1 contract

Samples: Asset Purchase Agreement (Lattice INC)

Notice of Claims. (a) If, at any time on or prior Any Search Indemnified Party seeking indemnification hereunder shall give to the Claims Deadline, Indemnifying Party a notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any Claim and shall include in such Claim Notice (if then known) the amount or the method of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, such Breitling Indemnified Party shall submit to the Company a written claim in good faith signed by an authorized officer of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of such Claim; provided, that a Claim Notice in respect of any such Damagesaction 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 (b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which a Search Indemnified Party shall be entitled under this Section 10 shall be determined, to the extent feasible: (i) by the written agreement between the Search Indemnified Party and the Indemnifying Party; (ii) by a binding nonappealable award in reasonable detail, the facts alleged as the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claiman arbitration proceeding; and (iii) if the Damages have actually been incurred, the number by a final judgment or decree of additional Common Shares any court of competent jurisdiction; or (iv) by any other means to which the Breitling Search Indemnified Parties are entitled to with respect to such Damages, which Party and the Indemnifying Party shall agree. The judgment or decree of a court shall be determined as provided in 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. Notwithstanding the foregoing, unless the Indemnifying Parties dispute the coverage of the Claim by this Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated10, the written claim of the applicable Breitling Search Indemnified Party shall state be entitled to receive from the reasonable estimate Escrow Fund its costs and expenses incurred regarding investigating and defending any such Claim regardless of such Damages, in which event a claim shall be deemed whether the parties have agreed to have been asserted under this Article V in the exact amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to indemnification coverage as set forth above in this Section 5.5 below shall be made until such Damages have actually been incurred10.2(b). (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demand.

Appears in 1 contract

Samples: Stockholders Agreement (Search Capital Group Inc)

Notice of Claims. (a) If, at any time on or prior to the Claims Deadline, any of the Breitling Indemnified Parties shall assert If a claim for indemnification pursuant Losses (a “Claim”) is to Section 5.1be made by Parent that does not involve a third party, such Breitling Indemnified Party Parent shall submit give written notice (a “Claim Notice”) to the Company a written claim in good faith signed by an authorized officer of Breitling VSee or other Breitling Indemnified PartyiDoc, as applicable, stating and the Escrow Agent (in such capacity, the “Indemnifying Party”), which Claim Notice shall describe the claim for indemnification hereunder and specify in reasonable detail, to the extent known and reasonably quantifiable at such time, the amount or estimated amount of the Claim, which statement or estimate shall not be binding and may be revised, amended or modified upon notice to the Indemnifying Party. The failure of Parent to give timely notice of a Claim hereunder shall not affect Pxxxxx’s rights to indemnification hereunder. If the applicable Indemnifying Party disputes in writing its liability with respect to such Claim or the estimated amount of such Losses pursuant to this Section 8.4 within forty-five (45) days following delivery of such Claim Notice, the parties shall attempt in good faith to resolve such dispute; provided, that, if such dispute has not been resolved within thirty (30) days following notice of such dispute of the Claim Notice, then the amount of indemnification to which Parent shall be entitled under this Article 8 shall be determined by: (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages the written agreement between Parent and the reasonable estimate Indemnifying Party through the use of good faith efforts to resolve such dispute; (ii) a final judgment or decree of any Governmental Entity of competent jurisdiction; or (iii) any other means to which Parent and the Indemnifying Party shall agree. The judgment or decree of a Governmental Entity 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. Following such determination of the amount of any such Damages; (ii) in reasonable detailindemnification, the facts alleged as the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If applicable Indemnifying Party notifies Parent that it does not dispute the claim is for Damages which described in the Breitling Indemnified Parties reasonably believe may be incurred Claim Notice or are otherwise unfails to respond within forty-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate five (45) days following receipt of such DamagesClaim Notice, in which event a claim shall be deemed to have been asserted under this Article V in such determination of the amount of such estimated Damagesindemnification or the Losses identified in the Claim Notice, but no distribution as applicable, will be conclusively deemed a liability of additional Common Shares the Indemnifying Party under Section 8.2(a) or Section 8.2(b), as applicable, and Parent shall forward to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until Indemnifying Party written notice of any such Damages have actually been incurred. (b) In sums due and owing by the event that any action, suit or proceeding is brought against any Breitling Indemnified Indemnifying Party with respect to which and the Company may have liability under this Article V, the Company shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Indemnifying Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling Indemnified Party agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense pay all of such action, suit or proceeding. The Company shall not, without the prior written consent sums so due and owing within five (5) Business Days by wire transfer of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandimmediately available funds.

Appears in 1 contract

Samples: Business Combination Agreement (Digital Health Acquisition Corp.)

Notice of Claims. (ai) If, at any time If CGSI seeks indemnification hereunder it shall give the Representative on or prior to the Claims Deadline, any behalf of the Breitling Indemnified Parties shall assert Creditor (the "Indemnitor") a notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of such claim, and a reference to the provision of this Agreement or any agreement, document or instrument executed pursuant hereto or in connection herewith upon which such Damagesclaim 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 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. (ii) in reasonable detailAfter the giving of any Claim Notice pursuant hereto, the facts alleged as amount of indemnification to which CGSI shall be entitled shall be determined: (A) by the basis written agreement between the Representative and CGSI; or (B) by a final judgment or decree of any court of competent jurisdiction. The judgment or decree of a court shall be deemed final when the time for such claim appeal, if any, shall have expired and the section no appeal shall have been taken or sections of this Agreement alleged as the basis or bases for the claim; and when all appeals taken shall have been finally determined. (iii) if If CGSI is entitled to indemnification hereunder, and the Damages have actually been incurred, the number amount of additional Common Shares indemnification to which the Breitling Indemnified Parties are CGSI is entitled to with respect to such Damages, which shall be has been determined as provided for this Section 3, CGSI shall satisfy such claim from the Escrow Shares in Section 5.5 below. If accordance with the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim terms of the applicable Breitling Indemnified Party shall state the reasonable estimate Escrow Agreement. For purposes of such Damagesthis Indemnification Agreement, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurred. (b) In the event that any action, suit or proceeding is brought against any Breitling Indemnified Party with respect to which the Company may have liability under this Article V, the Company an Escrow Share shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf a value of the Breitling Indemnified Party; provided, however, that a Breitling Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demand$1.35.

Appears in 1 contract

Samples: Creditor Waiver and Consent Agreement (Capital Growth Systems Inc /Fl/)

Notice of Claims. (a) If, at any time on or prior Any party seeking indemnification hereunder (the "INDEMNIFIED PARTY") shall give promptly to the Claims Deadline, any of party obligated to provide indemnification to such Indemnified Party (the Breitling Indemnified Parties shall assert "INDEMNITOR") a written notice (a "CLAIM NOTICE") describing in reasonable detail the facts giving rise to the claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate computation of the amount of any such Damages; (ii) in reasonable detailclaim, and a reference to the facts alleged as the basis for such claim and the section or sections provision of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurredany other agreement, the number of additional Common Shares to document or instrument executed hereunder or in connection herewith upon which the Breitling Indemnified Parties are entitled to with respect to such Damages, which shall be determined as provided in Section 5.5 below. If the claim is for Damages which based; PROVIDED, HOWEVER, that the Breitling failure of any Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, Party to give the written claim Claim Notice promptly as required by this SECTION 9.3(a) shall not affect such Indemnified Party's rights under this SECTION 9 except to the extent such failure is actually prejudicial to the rights and obligations of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredIndemnitor. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this SECTION 9 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right burden of proof in establishing the amount of Liabilities and Expenses suffered by it. All amounts due to retain its own counsel, with fees and expenses the Indemnified Party as so finally determined shall be paid by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Partywire transfer within thirty (30) calendar days after such final determination. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandnotice.

Appears in 1 contract

Samples: Asset Purchase Agreement (Surge Global Energy, Inc.)

Notice of Claims. (a) If, at any time on or prior Any party seeking indemnification hereunder shall give to the Claims Deadline, 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 of the Breitling Indemnified Parties shall assert a claim for indemnification pursuant to Section 5.1, hereunder and shall include in such Breitling Indemnified Party shall submit to Claim Notice (if then known) the Company a written claim in good faith signed by an authorized officer amount or the method of Breitling or other Breitling Indemnified Party, as applicable, stating (i) that a Breitling Indemnified Party incurred or reasonably believes it may incur Damages and the reasonable estimate 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 Damagesclaim is based; 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) in reasonable detail, failure to give such notice shall not relieve the facts alleged as Indemnitor of its obligations hereunder except to the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim; and (iii) if the Damages have actually been incurred, the number of additional Common Shares to which the Breitling Indemnified Parties are entitled to with respect to such Damages, which extent it shall be determined as provided in Section 5.5 below. If the claim is for Damages which the Breitling Indemnified Parties reasonably believe may be incurred or are otherwise un-liquidated, the written claim of the applicable Breitling Indemnified Party shall state the reasonable estimate of such Damages, in which event a claim shall be deemed to have been asserted under this Article V in the amount of prejudiced by such estimated Damages, but no distribution of additional Common Shares to the Breitling Indemnified Persons pursuant to Section 5.5 below shall be made until such Damages have actually been incurredfailure. (b) In After the event that giving of any actionClaim Notice pursuant hereto, suit or proceeding is brought against any Breitling the amount of indemnification to which an Indemnified Party with respect shall be entitled under this Article 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 Company may have liability under this Article VIndemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, the Company if any, shall have the right, at its cost expired and expense, to defend such action, suit no appeal shall have been taken or proceeding in the name and on behalf of the Breitling Indemnified Party; provided, however, that a Breitling when all appeals taken shall have been finally determined. The Indemnified Party shall have the right to retain its own counsel, with fees burden of proof in establishing the amount of Loss and expenses paid Expense suffered by the Company, if representation of the Breitling Indemnified Party by counsel retained by the Company would be inappropriate because of actual or potential differing interests between the Company and the Breitling Indemnified Party. In connection with any action, suit or proceeding subject to Article V, the Company and each Breitling 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 Company shall not, without the prior written consent of the applicable Breitling Indemnified Party, which consent shall not 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 Breitling Indemnified Party for any liability arising out of such claim or demandit.

Appears in 1 contract

Samples: Share Purchase Agreement (China INSOnline Corp.)

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