Procedure for Claims. (a) Any Person that desires to seek indemnification under any part of this Article X (each, an “Indemnified Party”) shall give notice (a “Claim Notice”) to each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) prior to any applicable Expiration Date specified below. Such notice shall explain with specificity the nature of the claim, the specific Article and section of this Agreement to which the claim relates and the parties known to be involved, and shall specify the amount of the estimated damages relating thereto. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but shall also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In the event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Positron Corp)

Appears in 1 contract

Samples: Stock Purchase Agreement (Ibah Inc)

Procedure for Claims. (a) Any Person that desires to seek indemnification under any part of this ~~Article X~~ Section 10 (each, an “"Indemnified Party”") shall give notice (a “"Claim Notice”") to each party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor”") prior to any applicable Expiration Date specified below. Such notice shall explain with specificity the nature of the claim, the specific ~~Article and~~ section of this Agreement to which the claim relates and the parties known to be involved, and shall specify the amount of the estimated damages relating thereto. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but shall also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In the event of a dispute as to the amount or manner of indemnification under this ~~Article X~~Section 10, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter.

Appears in 1 contract

Samples: Stock Purchase Agreement (Certified Services Inc)

Procedure for Claims. (a) Any Person that desires to seek indemnification under any part of this Article X (each, an “"Indemnified Party”") shall give notice (a “"Claim Notice”") to each party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor”") prior to any applicable Expiration Date specified below. Such notice shall explain with specificity the nature of the claim, the specific Article and section of this Agreement to which the claim relates and the parties known to be involved, and shall specify the amount of the estimated damages relating thereto. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but shall also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In the event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter.

Appears in 1 contract

Samples: Stock Purchase Agreement (Positron Corp)

Appears in 1 contract

Samples: Stock Purchase Agreement (Oao Technology Solutions Inc)

Procedure for Claims. (a) Any ~~Person~~ Indemnified Party that ~~desires to seek~~ seeks indemnification under any part of this ~~Article X (each, an “Indemnified Party”)~~ Section 11 shall give notice (a “"Claim Notice”") to each ~~party responsible or~~ Party alleged to be responsible for indemnification hereunder (an “"Indemnitor”") prior to any applicable Expiration Date specified below. (For the purposes of this Section 11, the Holders' Representative shall be deemed the "Indemnitor" with respect to any claim under Section 11.1 even though the Holders' Representative is only acting in a representative capacity with respect to any such claim, but any Indemnified Party seeking indemnification shall nevertheless give the claim notice to each Party alleged to be responsible pursuant to the first sentence of this Section 11.4. Such notice shall explain ~~with specificity~~ in reasonable detail the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount thereof. If the Claim Notice is being sent under Section 11.1 or Section 11.2, the Indemnified Party shall also send a copy of the ~~estimated damages relating thereto~~Claim Notice to the Escrow Agent. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. ~~Each~~ The Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 20 days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements ~~hereunder~~hereunder (with a copy delivered to the Escrow Agent), and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Claim Response Period the amount to which such Indemnified Party shall be entitled. Prior to the date on which all Escrow Funds have been disbursed (the "Escrow Distribution Date"), however, an Indemnified Party shall first be entitled to payment of the related Damages under the Escrow Agreement with respect to a claim under Section 11.1, but only to the extent that Escrow Funds are then being held by the Escrow Agent and such amounts are not subject to other claims for indemnification. Following the Escrow Distribution Date or prior thereto if and to extent that such remaining Escrow Funds are insufficient to satisfy a claim, the Indemnified Escrow Party shall be entitled to payment directly from the Participating Common Holders for their respective Pro Rata Shares of the related Damages. In the ~~event~~ case of a claim against any Participating Common Holder under Section 11.2 prior to the Escrow Distribution Date, an Indemnified Party shall first be entitled to payment of the related Damages under the Escrow Agreement, but only to the extent of the Indemnitor's proportionate share of any Escrow Funds that are then being held by the Escrow Agent and such amounts are not subject to other claims for indemnification. Following the Escrow Distribution Date or prior thereto if and to extent that the remaining unclaimed Escrow Funds are insufficient to satisfy a claim, the Indemnified Party shall be entitled to payment directly from the respective Participating Common Holders that are obligated under Section 11.1 or Section 11.2, as the case may be. If there shall be a dispute as to the amount or manner of indemnification under this ~~Article X~~Section 11, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any ~~Indemnitor in accordance with the arbitration provisions of this Agreement~~applicable Indemnitor. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime ~~Rate. The~~ Rate plus 5%, and the Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter. (c) Notwithstanding any other provision of this Section 11, except as provided below in this paragraph (c) and paragraph (d) below, (i) none of the Buyer Indemnified Parties shall be entitled to indemnification hereunder with respect to the breach of a representation or warranty by any Party (excluding any breaches covered by Section 11.2) until the aggregate of all Damages to such Indemnified Parties from all such breaches of representations or warranties exceeds $1.25 million (the "Deductible Amount"), and then only to the extent of such excess amount, (ii) none of the Participating Common Holders or Buyer Parties, respectively, shall be liable under this Agreement for an aggregate amount in excess of $18.5 million (the "Maximum Indemnification") and (iii) none of the Buyer Indemnified Parties, shall be entitled to make a claim for indemnification pursuant to Section 11.1(a) for any Damages that such Buyer Indemnified Party may sustain, suffer, or incur and that result from, arise out of or relate to any breach of any representation, warranty, comment or agreement unless the amount of such claim for indemnification is equal to or exceeds $10,000 (the "Minimum Claim Amount"). The foregoing limitations with respect to the Deductible Amount shall not apply, however, to (a) any breach of the Company's representations or warranties under Sections 3.1, 3.2 or 3.4(a), the penultimate sentence of Section 3.5 or the sentence of Section 3.25 with respect to aggregate oral commitments, (b) any Claim that can be based on a breach of a covenant or agreement as well as on a breach of a representation or warranty, or (c) any Claim with respect to any 1998 Matters. The foregoing limitations with respect to the Maximum Indemnification shall not apply, however, to (y) any breach of the Company's representations or warranties under Sections 3.1, 3.2, 3.4(a), 3.6 or the penultimate sentence of Section 3.5, or (z) any breach of any of any Party's representations or warranties that were made with an intent to mislead or defraud or with a reckless disregard of the accuracy thereof. Notwithstanding anything herein to the contrary, no Participating Common Holder shall be liable in connection with this Agreement or the Merger for any amounts in excess of such Participating Common Holder's pro rata portion of the Common Merger Consideration. (d) Any Buyer Indemnified Party shall be entitled to indemnification hereunder for one-half of any Damages that such Buyer Indemnified Party may sustain, suffer or incur that result from, arise out of or relate to any Scheduled Environmental Matter, without the limitation of the Deductible Amount or the Minimum Claim Amount but subject to the limitation of the Maximum Indemnification, with such Buyer Indemnified Party bearing the other one-half of such Damages. The amount of Damages borne by any Buyer Indemnified Party with respect to such Scheduled Environmental Matters shall count as Damages against the Deductible Amount in paragraph (c) above.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Sunsource Inc)

Procedure for Claims. (a) Any Person that desires to seek indemnification under any ~~part~~ provision of this ~~Article X~~ Section 10 or any other provision of this Agreement providing for indemnification (each, an “"Indemnified Party”") shall give notice (a “"Claim Notice”") to each party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor”") prior to any applicable Expiration Date specified below. Such ~~notice~~ Claim Notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 sixty (60) days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Any failure to give a Claim Notice in a timely manner pursuant to this Section 10.5(a) shall not limit the obligation of the Indemnitor under this Article 10, except to the extent such Indemnitor is prejudiced thereby and except as otherwise provided in Section 10.8. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 thirty (30) days (the “"Response Period”") after the later of (ia) the date that the Claim Notice is given or (iib) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. ~~For~~ If the ~~purposes of~~ Indemnitor notifies the ~~immediately preceding sentence, an Indemnitor's failure to give a timely~~ Indemnified Party in the Claim Response ~~shall not be deemed an election not to dispute a Claim Notice unless~~ that it disputes the claim made by the Indemnified Party, then the Indemnitor and the Indemnified Party shall ~~have given~~ endeavor in good faith for a ~~second Claim Notice after expiration~~ period of thirty (30) days to settle and compromise such claim, and if unable to agree on any settlement or compromise, such claim for indemnification shall be settled by arbitration in accordance with the ~~Response Period and~~provisions of Section 11.1 of this Agreement, ~~another 20 days after the date on which the Indemnified Party~~ and any Loss established by reason of such settlement, compromise or arbitration shall ~~have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period~~be deemed to be finally determined. (b) ~~If any Indemnitor~~ Any Loss that is finally determined in the manner set forth in Section 10.5(a) shall be ~~obligated~~ paid by the Indemnitor to ~~indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such~~ the Indemnified Party within 30 thirty (30) days after (a) the last day of the Claim Response Period or (b) the ~~amount to~~ date on which such ~~Indemnified Party~~ settlement, compromise or arbitration described in the last sentence of Section 10.5(a) shall have been deemed to be ~~entitled. In~~ finally determined, as the ~~event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party~~ case may ~~pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement~~be. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime ~~Rate. The~~ Rate plus two percent (2%) per annum, and the Prime Rate in effect on the first (1st) business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter.

Appears in 1 contract

Samples: Formation Agreement (Crown Castle International Corp)

Procedure for Claims. (a) Any ~~Person~~ Indemnified Buyer Party or any Indemnified Seller Party that desires to seek indemnification under any part of this ~~Article X~~ Section 10 (each, an “"Indemnified Party”") shall give notice (a “"Claim Notice”") to each party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor~~”) prior to any applicable Expiration Date specified below~~"). Such ~~notice~~ Claim Notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. Each Indemnitor to which or whom a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 30 days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the applicable Response Period the amount to which such Indemnified Party shall be entitled. ~~In the event of~~ If there shall be a dispute as to the amount or manner of indemnification under this ~~Article X~~Section 10, the Indemnitor and the Indemnified Party shall seek to resolve such dispute through negotiations and, if such dispute is not resolved within twenty days, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any ~~Indemnitor in accordance with the arbitration provisions of this Agreement~~Indemnitor. If any Indemnitor fails to pay all or part of any undisputed indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to 10%. (c) Notwithstanding any other provision of this Agreement, (i) no Indemnified Party shall be entitled to indemnification hereunder for Damages arising out of or based upon any inaccuracy in or breach of any representation or warranty made in or pursuant to this Agreement or any other Transaction Document until the ~~Prime Rate~~aggregate of all Damages to all Indemnified Parties in the group to which such Indemnified Party belongs (either Indemnified Buyer Parties, as a group, or Indemnified Seller Parties, as a group) exceeds $250,000 (the "Basket Amount") and then such Indemnified Party shall be entitled to indemnification for all of its Damages, and (ii) no Indemnitor shall be liable under this Agreement for any Damages in excess of the Indemnification Limitation (defined below) arising out of or based upon any inaccuracy in or breach of any representation or warranty made in or pursuant to this Agreement or any other Transaction. The ~~Prime Rate in effect on the first business day~~ limitations of ~~each calendar quarter~~ this paragraph (c), however, shall not apply to any (i) breaches of any representations or warranties contained in Sections 4.12, 4.13(a), 4.13(b), 4.13(d) or 4.17 or (ii) covenants or agreements contained in Section 6 hereof. For purposes hereof, the ~~amount of~~ Indemnification Limitation shall mean $5,000,000. In addition, the ~~unpaid obligation during~~ Buyer may set-off any amounts that it is entitled to indemnification hereunder against any Contingent Payment; provided, however, that the Buyer may no set-off any such ~~calendar quarter~~amounts against the Holdback.

Appears in 1 contract

Samples: Asset Purchase Agreement (Telespectrum Worldwide Inc)

Procedure for Claims. (a) ~~Any Person~~ A Party that desires to seek indemnification under any part of this ~~Article X~~ Section 10 (~~each,~~ an “Indemnified Party”) shall give notice (a “Claim Notice”) to each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) prior to any applicable Expiration Date specified below. Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 30 days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or and (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. ~~In the event of~~ If there shall be a dispute as to the amount or manner of indemnification under this ~~Article X~~Section 10, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any ~~Indemnitor~~ Indemnitor, but any dispute shall be resolved in accordance with Section 13.5 to the ~~arbitration provisions of this Agreement~~extent that it may be applicable. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate~~. The~~ , and the Prime Rate in effect on the first ~~business day~~ Business Day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter. (c) Notwithstanding any other provision of this Section 10, except with respect to the provisions regarding post-closing adjustments in Section 2.5, an Indemnified Buyer Party shall be entitled to indemnification under Section 10.1(a)(i) only when the aggregate of all Damages to all Indemnified Buyer Parties exceeds $150,000 (the “Threshold Amount”); provided, however, that after exceeding such amount, all Damages back to the first dollar shall be recoverable by the Indemnified Buyer Parties. The calculation of the Threshold Amount shall include any Damages incurred by an Indemnified Buyer Party for which the Indemnified Buyer Party would have been entitled to claim indemnification under this Section 10 with respect to a breach of representation or warranty but for such representation or warranty being qualified by materiality, the knowledge of a particular party or related exceptions. In no event shall the Seller Parties be obligated to indemnify the Indemnified Buyer Parties under Section 10.1(a)(i) for an aggregate amount in excess of $1,500,000 (the “Cap”). Notwithstanding the foregoing, neither the Threshold Amount nor the Cap shall apply to the representations or warranties set forth in Sections 4.1, 4.2, 4.3, , 4.5, 4.7, 4.11, 4.16, 4.22 and 4.25. Further, notwithstanding the foregoing, the Cap shall not apply with respect to the representations or warranties set forth in Section 4.14, however, in no event shall the Seller Parties be obligated to indemnify the Indemnified Buyer Parties for an aggregate amount in excess of the amount of the Indemnity Escrow Funds (as such term is defined in the Escrow Agreement). In addition, in the case of a claim for Damages that may be made based on items set forth in more than one of clauses (a)(i) through (a)(vi) of Section 10.1(a), an Indemnified Buyer Party make may such claim based on any one of the clauses in Section 10.1(a), except to the extent that such claim is based solely on only one of such clauses. (d) Notwithstanding any other provision of this Section 10, except with respect to the provisions regarding post-closing adjustments in Section 2.5, an Indemnified Seller Party shall be entitled to indemnification under Section 10.2 only when the aggregate of all Damages to all Indemnified Seller Parties exceeds the Threshold Amount; provided, however, that after exceeding such amount, all Damages back to the first dollar shall be recoverable by the Indemnified Seller Parties. The calculation of the Threshold Amount shall include any Damages incurred by an Indemnified Seller Party for which the Indemnified Seller Party would have been entitled to claim indemnification under this Section 10 with respect to a breach of representation or warranty but for such representation or warranty being qualified by materiality, the knowledge of a particular party or related exceptions. In no event shall the Buyer and the Parent be obligated to indemnify the Indemnified Seller Parties under Section 10.2 for an aggregate amount in excess of $250,000. Notwithstanding the foregoing, neither the Threshold Amount nor the maximum indemnification amount set forth in the immediately preceding sentence shall apply to the representations or warranties set forth in Section 5. (e) Any claim for indemnity arising solely out of the breach by only one Shareholder of his obligations under Section 7.1 shall be brought solely against the breaching Shareholder, and Buyer shall have no remedy against the non-breaching Seller Parties.

Appears in 1 contract

Samples: Asset Purchase Agreement (CSS Industries Inc)

Procedure for Claims. (a) ~~Any Person~~ An Indemnified Purchaser Party or an Indemnified Seller Party that desires to seek indemnification under any part of this Article X 7 (each, an “"Indemnified Party”") shall give notice (a “"Claim Notice”") to each party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor”") prior to any applicable Expiration Date specified below. Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 20 days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or and (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. ~~In the event of~~ If there shall be a dispute as to the amount or manner of indemnification under this Article X7, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any ~~Indemnitor in accordance with the arbitration provisions of this Agreement~~Indemnitor. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate~~. The~~ , and the Prime Rate in effect on the first ~~business day~~ Business Day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter. (c) An Indemnified Party shall be entitled to indemnification with respect to inaccuracy of any representation or warranty made hereunder only when the aggregate of all Damages to such Indemnified Party exceeds $50,000 (the "Deductible Amount") and then such Indemnified Party shall be entitled to indemnification for all of its Damages in excess of the Deductible Amount. In no event shall the Sellers be obligated to indemnify the Purchaser under Section 7.1 for inaccuracies of any representations or warranties in amounts in excess of the Escrow Fund, except for Damages resulting from a breach of the representations or warranties set forth in Sections 4.2, 4.3, 4.6, 4.8 or 4.11. (d) The Sellers will pay all indemnification arising under Section 7.1(a)(iii) from their own funds. The Sellers will first satisfy the Indemnified Purchaser Parties for any other indemnification obligation of the Sellers pursuant to Section 7.1 with the cash held under the Escrow Fund. In the event all of the cash has been used to satisfy such indemnification obligations, the Indemnified Purchaser Parties may satisfy any further indemnification obligations of the Sellers pursuant to Section 7.1 with the Contingent Escrow Amount. For purposes of determining the number of shares of Purchaser Stock to be delivered, each share shall be deemed to have a value equal to the average of the closing prices of Purchaser Stock as reported on the Nasdaq Stock Market for the 20 trading days commencing on the date the amount of the claim for which Sellers are required to indemnify the Purchaser is finally determined. A "trading day" shall mean a day on which the Nasdaq Stock Market is open for business and there are reported trades of Purchaser Stock.

Appears in 1 contract

Samples: Share Purchase Agreement (Quipp Inc)

Procedure for Claims. (a) Any ~~Person~~ Indemnified Purchaser Party or any Indemnified Company Party that desires to seek indemnification under any part of this ~~Article X~~ Section 7 (each, an “"Indemnified Party”") shall give notice (a “"Claim Notice”") to each party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor~~”) prior to any applicable Expiration Date specified below~~"). Such ~~notice~~ Claim Notice shall specifically explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount of the estimated damages relating thereto. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but shall also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claimthereof. Each Indemnitor to which or whom a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 30 days (the “"Response Period”") after ~~the later of (i)~~ the date that the ~~Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated~~ Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, the Indemnified Party shall provide the Indemnitor with notice (the "Additional Notice") of such failure in accordance with the notice requirements of this Agreement, and if the Indemnitor fails to respond within twenty days after such Additional Notice, such Indemnitor shall be deemed not to dispute the claim described in the related Claim ~~Notice~~Notice is given. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or ~~otherwise~~by written acknowledgment, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the applicable Response Period the amount to which such Indemnified Party shall be entitled. ~~In the event of~~ If there shall be a dispute as to the amount or manner of indemnification under this ~~Article X~~Section 7, the Indemnitor and the Indemnified Party shall seek to resolve such dispute through negotiations and, if such dispute is not resolved within twenty days, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any ~~Indemnitor in accordance with the arbitration provisions of this Agreement~~Indemnitor. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to 10%. (c) Notwithstanding any other provision of this Section 7, with respect to each Purchaser, neither the ~~Prime Rate. The Prime Rate~~ Company nor such Purchaser shall be liable under this Agreement for any Damages arising out of or based upon any inaccuracy in ~~effect on the first business day~~ or breach of ~~each calendar quarter shall apply~~ any representation or warranty made in or pursuant to ~~the~~ this Agreement for an amount in excess of the ~~unpaid obligation during~~ Purchase Price paid by each such ~~calendar quarter~~Purchaser.

Appears in 1 contract

Samples: Class C Convertible Preferred Stock and Warrant Purchase Agreement (Orthovita Inc)

Appears in 1 contract

Samples: Asset Purchase Agreement (Telespectrum Worldwide Inc)

Procedure for Claims. ~~(a)~~ Any Person that desires to seek indemnification under any part of this ~~Article X~~ Section 10 (each, an ~~“Indemnified Party”~~"INDEMNIFIED PARTY") shall give notice (a ~~“Claim Notice”~~"CLAIM NOTICE") to each ~~party~~ Party responsible or alleged to be responsible for indemnification hereunder (an ~~“Indemnitor”~~"INDEMNITOR") prior to any applicable Expiration Date specified ~~below~~below in Section 10.4. Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an ~~“Unliquidated Claim”~~"UNLIQUIDATED CLAIM"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the ~~“Liquidated Claim Notice”~~"LIQUIDATED CLAIM NOTICE") within 60 days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. ~~Each~~ The Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a ~~“Claim Response”~~"CLAIM RESPONSE") within 60 20 days (the ~~“Response Period”~~"RESPONSE PERIOD") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In If a Indemnified Buyer Party shall be the ~~event of~~ Indemnified Party with respect to a claim under Section 10.1, the Indemnified Buyer Party shall be entitled to payment directly from the Sellers. If there shall be a dispute as to the amount or manner of indemnification under this ~~Article X~~Section 10, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any ~~Indemnitor in accordance with the arbitration provisions of this Agreement~~Indemnitor. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the ~~Prime Rate. The Prime~~ Barclay's Rate plus 5%, and the Barclay's Rate in effect on the first ~~business~~ xxxxxxxx day of each calendar ~~quarter shall~~ quxxxxx xxxll apply to the amount of the unpaid obligation during such calendar quarter.

Appears in 1 contract

Samples: Acquisition Agreement (Usdata Corp)

Procedure for Claims. (a) ~~Any Person~~ An Indemnified Purchaser Party or an Indemnified Seller Party that desires to seek indemnification under any part of this Article X 10 (each, an “Indemnified Party”) shall give notice (a “Claim Notice”) to each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) prior to any applicable Expiration Date specified below. Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 15 days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 20 days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or and (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In the event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate~~. The~~ , and the Prime Rate in effect on the first ~~business day~~ Business Day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter. If the Indemnified Party shall be an Indemnified Purchaser Party, it shall first seek payment of the Damages to which it is entitled under this Article 10 from the Escrow Funds, but only to the extent that Escrow Funds are then being held by the Escrow Agent and are not subject to other claims for indemnification; provided, that if the amount of the Escrow Funds available for payment of Damages is less than the amount of Damages to which such Indemnified Purchaser Party is entitled, then, subject to the limitations contained in this Article 10, the Purchaser Party shall have the right to seek payment of such Damages from (i) the Escrow Funds to the extent available and (ii) directly from the Sole Stockholder for the remainder of such Damages in excess of the Escrow Funds. If there shall be a dispute as to the amount or manner of indemnification under this Article 10, the Indemnified Party and the Indemnitor may each pursue whatever legal remedies may be available to enforce its rights under this Agreement. (c) If the Indemnified Party is an Indemnified Purchaser Party and, pursuant to Section 10.3(b), such Indemnified Purchaser Party is obligated to seek any portion of the funds to which such Indemnified Purchaser Party is entitled from the Escrow Funds, then, within three Business Days from the date on which it is finally determined that such Indemnified Purchaser Party became entitled to such funds, Purchaser and the Sole Stockholder shall provide joint written instructions to the Escrow Agent as to (i) the amount of funds, if any, to be disbursed from the Escrow Funds, and (ii) instructions as to the manner in which such funds shall be disbursed by the Escrow Agent. (d) Except as set forth below, an Indemnified Party shall be entitled to indemnification with respect to inaccuracy of any other representation or warranty made hereunder only when the aggregate of all Damages actually incurred by such Indemnified Party exceeds $ [The confidential material contained herein has been omitted and has been separately filed with the Commission.] (the “Deductible Amount”) and then such Indemnified Party shall be entitled to indemnification for [The confidential material contained herein has been omitted and has been separately filed with the Commission.]. In no event shall the Sole Stockholder be obligated to indemnify the Purchaser under Section 10.1(a) for amounts in excess of the Escrow Amount (the “Cap”). Notwithstanding the foregoing, neither the Deductible Amount nor the Cap shall apply to [The confidential material contained herein has been omitted and has been separately filed with the Commission.]. (e) For purposes of [The confidential material contained herein has been omitted and has been separately filed with the Commission.], Damages shall be calculated without regard and without giving effect to any materiality, material adverse effect or similar qualification, and Knowledge or similar qualification contained in any representation, warranty, covenant or agreement. (f) To the extent an Indemnified Party actually receives insurance proceeds for Damages for which a claim under this Article 10 has be made and for which such Indemnified Party has been indemnified by, and actually received payment from, an Indemnitor, then, within 7 Business Days of receipt of such insurance proceeds, such Indemnified Party shall pay the amount of such insurance proceeds to the Indemnitor by wire transfer of immediately available funds (it being understood that an Indemnified Party shall not have any obligation to submit claims to insurance carriers or to collect insurance proceeds).

Appears in 1 contract

Samples: Stock Purchase Agreement (Gsi Commerce Inc)

Procedure for Claims. (a) ~~Any Person~~ An Indemnified Safeguard Party or an Indemnified Seller Party that desires to seek indemnification under any part of this ~~Article X~~ Section 10 (each, an “Indemnified Party”) shall give notice (a “Claim Notice”) to each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) prior to any applicable Expiration Date specified below. Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 thirty (30) days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 forty-five (45) days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or and (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If The Principal Stockholders shall not have any ~~Indemnitor~~ liability under Section 10.1 unless and until the amount of the aggregate indemnification obligations under such Section 10.1 exceeds $75,000 (the “Threshold”), whereupon the Principal Stockholders shall indemnify, defend, protect and hold harmless the Safeguard Indemnified Parties for the amount of all Claims provided that the Threshold shall not apply to (i) any adjustment to the Merger Consideration pursuant to Section 2.8, (ii) any claim for indemnification pursuant to a breach of the representations set forth in Section 4.10(b) (Accounts Receivable), (iii) any claim for indemnification pursuant to Section 10.1(a)(ii) relating to the nonfulfillment of a covenant or agreement on the part of the Stockholder Representative, (iv) any claim for indemnification pursuant to Section 10.1(a)(iii) (Dissenting Shares) and (v) any claim for indemnification pursuant to Section 10.1(a)(iv) (Breach Fiduciary Duties). Except as provided in the immediately following sentence, in no event shall the Principal Stockholders be obligated to indemnify an the Safeguard Indemnified ~~Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day~~ Parties under Section 10.1 for amounts in excess of the ~~Response Period~~ General Indemnification Escrow Fund and, solely with respect to claims pursuant to Section 10.1(a)(iii), the ~~amount~~ Dissenters Indemnification Escrow Fund (the “Cap”). Notwithstanding the foregoing, the Principal Stockholders hereby agree to ~~which such~~ indemnify the Safeguard Indemnified ~~Party shall be entitled. In~~ Parties under Section 10.1 for claims for indemnification in excess of the Cap pursuant to (A) Section 10.1(a)(i) for breaches of the representations or warranties set forth in Sections 4.2 (Capitalization), 4.3 (Authority), 4.7 (Taxes), the first sentence of Section 4.12 (Title), Section 4.22 (Labor Matters), Section 4.23 (Employee Benefit Plans), Section 4.26 (Environmental Matters) and 4.29 (No Brokers) (a “Section 10.3(b) Indemnification Claim”), (B) Section 10.1(a)(iii) (Dissenting Shares), (C) Section 10.1(a)(iv) (Breach Fiduciary Duties), (D) Section 10.1(a)(v) (Affiliate Transactions and Relationships) and (E) in the event of ~~a dispute as to~~ any fraud by the ~~amount or manner of indemnification under this Article X~~Company, the ~~Indemnified Party may pursue whatever legal remedies may be available for recovery of~~ Stockholder Representative, the ~~Damages claimed from any Indemnitor in accordance with~~ Principal Stockholders or the ~~arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part~~ Subsidiary, and the maximum liability of any ~~indemnification obligation when due, then such Indemnitor Party~~ Principal Stockholder for a Section 10.3(b) Indemnification Claim shall ~~also~~ be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the ~~unpaid~~ Closing Payment received by such Principal Stockholder plus the aggregate amount of the Escrow Fund distributed to such Principal Stockholder. The Safeguard Indemnified Parties shall satisfy any and all claims owed by the Principal Stockholders under Section 10.1 from the Escrow Fund pursuant to the terms of the General Indemnification Escrow Agreement and the Dissenters Indemnification Escrow Agreement, respectively (provided, however, that any claims pursuant to Section 10.1(a)(iii) shall be satisfied first from the Dissenters Indemnification Escrow Fund and only claims pursuant to Section 10.1(a)(iii) shall be satisfied from the Dissenters Indemnification Escrow Fund), and from and after the Closing the sole recourse by the Safeguard Indemnified Parties for any claims arising under this Agreement shall be limited solely to the General Indemnification Escrow Fund and the Dissenters Indemnification Escrow Fund (solely with respect to claims pursuant to Section 10.1(a)(iii)), except for any liability of the Principal Stockholders (x) for a Section 10.3(b) Indemnification Claim, (y) under Section 10.1(a)(iii), or (z) for fraud. The amount of any Claims payable under Section 10.1 shall not include any liabilities to the extent accrued or reflected in the finally determined Closing Balance Sheet. Notwithstanding anything contained in this Agreement, (A) any liability of the Principal Stockholders in excess of the General Indemnification Escrow Fund and the Dissenters Indemnification Escrow Fund, respectively, s hall be several (on a proportionate basis based on such Principal Stockholder’s ownership of the Company immediately prior to the Effective Time on an as converted basis, as set forth on Schedule 10.3(b)) and not joint and (B) no Stockholder other than the Principal Stockholders shall have any liability in excess of such stockholder’s share of the Escrow Fund, absent fraudulent conduct by such stockholder. The amount of claims payable under this Section 10 shall not include any liabilities to the extent accrued or reflected in Actual Working Capital, and shall be net of any tax benefit (federal, state or local) and insurance amounts actually recovered in connection therewith. (c) Notwithstanding anything to the contrary set forth herein, any claim for indemnification made pursuant to Section 10.2 and any Claim Notice with respect to such claim, shall be made or given by the Stockholder Representative on behalf of the Stockholders. Safeguard shall have no obligation ~~during~~ or responsibility with respect to any claim for indemnification pursuant to Section 10.2 made by any party other than the Stockholder Representative and all obligations of Safeguard to Indemnified Seller Parties pursuant to Section 10, including payment and notice obligations, shall be deemed satisfied if the delivery, payment or other action is given, made taken with respect to, the Stockholder Representative. With respect to all claims for indemnification pursuant to Section 10.2, all references to “Indemnitor” in this Section 10.3 shall refer to the Stockholder Representative. (d) In the event that any amounts are paid to an Indemnified Safeguard Party with respect to any breach of the representation and warranty set forth in Section 4.10(b) relating to uncollected Accounts Receivable (such ~~calendar quarter~~amounts paid, the “Uncollected Accounts Receivable”), the Company shall use commercially reasonable efforts to collect the Uncollected Accounts Receivable and shall thereafter promptly remit any amounts collected by it with respect to the Uncollected Accounts Receivable, net of any reasonable out of pocket expenses incurred by the Company in connection with the collection of such Uncollected Accounts Receivable, to the Stockholder Representative (for distribution to the Stockholders).

Appears in 1 contract

Samples: Merger Agreement (Safeguard Scientifics Inc)

Procedure for Claims. (a) Any Person ~~that~~ who desires to seek indemnification under any part of this ~~Article X~~ Section 11 (each, an “"Indemnified Party”") shall give written notice in reasonable detail (a “"Claim Notice”") to each ~~party~~ Party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor”") and the Escrow Agent prior to any applicable Expiration Date ~~specified below~~(as defined in Section 11.4). Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be ~~involved~~invoked, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 30 days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim ~~Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim~~ Response shall specify whether ~~or not~~ the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response in accordance with the terms hereof or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party ~~hereunder~~pursuant to this Section 11, such Indemnitor shall pay to such Indemnified Party ~~within 30 days after the last day of the Response Period~~ the amount to which such Indemnified Party shall be ~~entitled. In~~ entitled within 15 Business Days after the ~~event of a dispute as~~ day on which such Indemnitor became so obligated to the ~~amount or manner of indemnification under this Article X,~~ Indemnified Party. If the Indemnified Party ~~may pursue whatever legal remedies may~~ shall be ~~available for recovery~~ an Indemnified Buyer Party, it shall first seek payment of the Damages ~~claimed~~ to which it is entitled under this Section 11 from ~~any Indemnitor in accordance with~~ the ~~arbitration provisions~~ Escrow Funds, but only to the extent that Escrow Funds are then being held by the Escrow Agent and are not subject to other claims for indemnification; thereafter, if the amount of ~~this Agreement~~the Escrow Funds available for payment of Damages is less than the amount of Damages to which such Indemnified Buyer Party is entitled, such Indemnified Buyer Party shall seek indemnification directly from the Seller Parties. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime ~~Rate.~~ Rate plus 5%. (c) The ~~Prime Rate in effect~~ claims period for the Escrow Funds shall commence on the ~~first business day~~ date hereof and shall continue until the date on which VERT timely files or should have filed its Annual Report on Form 10-K for the year ending December 31, 2000 in accordance with the rules and regulations of ~~each calendar quarter~~ the Commission (the "Claims Period"). Upon the expiration of the Claims Period, any Escrow Funds then remaining shall ~~apply~~ be released to the Seller; provided, however, that if any claim is pending as of the expiration of the Claims Period, Escrow Funds in an amount equal to the amount of any pending claims shall remain in escrow with the ~~unpaid~~ Escrow Agent pursuant to the Escrow Agreement until such claims are finally resolved. Any Claim Notice shall be considered timely made for the purposes of this Section 11 if given prior to the termination of the Claims Period and in accordance with the notice requirements of Section 15. Any Claim Response shall be considered timely made for the purposes of this Section 11 if given prior to the termination of the Response Period and in accordance with the notice requirements of Section 15. (d) If, during the Response Period, an Indemnified Party receives a Claim Response from the Indemnitor, then for a period of 45 days (the "Resolution Period") after the Indemnified Party's receipt of such Claim Response, the Indemnified Party and the Indemnitor shall endeavor to resolve any dispute arising therefrom. If such dispute is resolved by the parties during the Resolution Period, the amount that the parties have specified as the amount to be paid by the Indemnitor, if any, as settlement for such dispute shall be conclusively deemed to be an obligation of such Indemnitor. If the parties are unable agree upon a resolution to such dispute prior to the expiration of the Resolution Period (or any extension thereto to which the Indemnitor and Indemnified Party agree in writing), the issue shall be presented to the American Arbitration Association in Philadelphia, Pennsylvania (the "AAA") for determination. The written 50 determination of the AAA shall be binding upon the Parties. (e) If the Indemnified Party is an Indemnified Buyer Party and, pursuant to Section 11(b), such Indemnified Buyer Party is obligated to seek any portion of the funds to which such Indemnified Buyer Party is entitled from the Escrow Funds, then, within two Business Days from the date on which such Indemnified Buyer Party became entitled to such funds, the Indemnified Buyer Party and the Indemnitor shall provide joint written instructions to the Escrow Agent as to (i) the amount of funds, if any, to be dispersed from the Escrow Funds and (ii) instructions as to the manner in which such funds shall be dispersed by the Escrow Agent. (f) Notwithstanding any other provision of this Section 11, except as provided below in this Section 11.3(f), the Indemnified Buyer Parties on the one hand, and the Indemnified Seller Parties on the other hand, shall be entitled to indemnification hereunder with respect to any claim for Damages only when the aggregate of all Damages to such Indemnified Parties from all such breach of representations or warranties, plus, in the case of the Indemnified Buyer Parties, the AR Reserve Remainder and/or the Inventory Reserve Remainder, if any, exceeds $200,000 (the "Deductible Amount") and then only to the extent of such excess amount. The foregoing limitation with respect to the Deductible Amount shall not apply, however, to (a) any breach of the Seller Parties" representations or warranties under Sections 4.1 through and including 4.6 or 4.13 and (b) a breach of any representations or warranties of a Party to this Agreement that were made with an intent to mislead or defraud or with a reckless disregard of the accuracy thereof. In addition, in the case of the Claim that may be made based on a breach of a representation or warranty as well as on any other item described in clauses (a) through (e) of the first sentence of Section 11.1, such limitations regarding the Deductible Amount shall not apply to the extent that such Claim is not based solely on an asserted breach of a representation or warranty. Notwithstanding the foregoing, the maximum limitation for claims arising out of or related to any matters set forth in clause (a) shall be $25,000,000. In addition, the calculation of the Deductible Amount shall include any Damages incurred by an Indemnified Party for which the Indemnified Party would have been entitled to claim indemnification under this Section 11 with respect to a breach of a representation or warranty but for such Claim being excluded as a result of the qualification of such representation or warranty by the knowledge of a particular party or related exceptions. (i) It is the intent of the Parties that the Escrow Funds consist of at least $25,000,000, prior to any claims for indemnification that may be made by the Indemnified Buyer Parties. Upon the Effective Date of the Required Registration Statement, the Seller shall have the right, during the 45 day period following the Effective Date to instruct the Escrow Agent to release to a broker mutually satisfactory to the Buyer and the Seller from the Escrow Funds a sufficient number of shares (the "Monetization Shares") of the Escrow Stock that the Seller reasonably believes will generate at least $25,000,000 in net proceeds pursuant to a sale under the Required Registration Statement (the "Monetization Notice"). The Seller shall, as a condition to the release of the Escrow Stock for sale pursuant to this Section 11.3(g), provide the broker with written instructions (with a copy of such ~~calendar quarter~~instructions simultaneously provided to the Escrow Agent and the Buyer) providing for the proceeds of the sale of such Escrow Stock to be wired directly to the Escrow Agent to be placed into the escrow account. The Escrow Agent shall release to the Seller the remaining shares of Escrow Stock (the "Excess Escrow Shares"), as well as any cash proceeds in excess of $25,000,000 following the sale of the Monetization Shares. The Excess Escrow Shares shall be immediately subject to the restrictions provided in Section 6.9. Furthermore, on or prior to the expiration of the 45- day period following the Effective Date, the Seller shall have the right to deliver to the Escrow Agent an irrevocable letter of credit from the Seller, LeSaffre and/or Benedict in favor of VERT or the Buyer that shall expire no earlier than the expiration of the Claims Period in the amount of $25,000,000 from a financial institution reasonably acceptable to the Seller and the Buyer (the "Letter of Credit"). (ii) If the Seller does not deliver a Monetization Notice and does not deliver the Letter of Credit, after the expiration of the 45-day period following the Effective Date, the Seller shall, upon the Buyer's written instruction, instruct the Escrow Agent to release to a broker mutually satisfactory to the Buyer and the Seller from the Escrow Funds the Monetization Shares for sale under the Required Registration Statement. The Seller shall provide the broker with written instructions (with a copy of such instructions simultaneously provided to the Escrow Agent and the Buyer) providing for the proceeds of the sale of such Escrow Stock to be wired directly to the Escrow Agent to be placed into the escrow account. The Escrow Agent shall release to the Seller the Excess Escrow Shares, as well as any cash proceeds in excess of $25,000,000 following the sale of the Monetization Shares. (h) If, prior to the sale of Monetization Shares or the delivery of a Letter of Credit as provided in Section 11.3(g), an Indemnified Buyer Party is entitled to indemnification under Section 11, the Indemnified Buyer Party shall elect between recovering its Damages (i) directly from a reduction in the Escrow Stock or (ii) by deferring the recovery of its claim until such time as the Monetization Shares are sold or a Letter of Credit is delivered, as provided in Section 11.3(g). If an Indemnified Buyer Party elects to recover its Damages from a reduction in the Escrow Stock, the Escrow Stock shall be valued, on a per share basis, according to the per share price of the Common Stock as reported on the Nasdaq National Market on the date immediately preceding the date on which the Seller becomes obligated to pay such claim under this Section 11. Prior to any such recovery of Damages from a reduction in the Escrow Stock, the Seller shall be given the option to pay the Buyer such Damages in cash. If the price of the Common Stock has fallen such that the aggregate market value of the Escrow Stock is insufficient to satisfy completely any claim submitted by an Indemnified Buyer Party, the Indemnified Buyer Party shall be entitled to recover any deficiency directly from the Firm Stock pursuant to the Pledge Agreement. If an Indemnified Buyer Party elects to defer recovery, it shall be entitled to recover from the proceeds of the sale of the Monetization Shares or by drawing down on the Letter of Credit, in addition to the amount of Damages to which they are otherwise entitled, interest on the deferred portion of its indemnified claim at annual rate equal to Prime Rate (as measured from the date the deferral began).

Appears in 1 contract

Samples: Asset Purchase Agreement (Verticalnet Inc)

Procedure for Claims. (a) Any Person that desires to seek indemnification under any ~~part~~ provision of this ~~Article X~~ Section 10 or any other provision of this Agreement providing for indemnification (each, an “"Indemnified Party”") shall give notice (a “"Claim ----------------- ----- Notice”") to each party responsible or alleged to be responsible for ------ indemnification hereunder (an “"Indemnitor”") prior to any applicable Expiration ---------- Date specified below. Such ~~notice~~ Claim Notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an ------------------ Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim ---------------- Notice”") within 60 sixty (60) days after the matter giving rise to the claim ------ becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Any failure to give a Claim Notice in a timely manner pursuant to this Section 10.5(a) shall not limit the obligation of the Indemnitor under this Section 10, except to the extent such Indemnitor is prejudiced thereby and except as otherwise provided in Section 10.8. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 thirty (30) days (the “"Response Period”") -------------- --------------- after the later of (ia) the date that the Claim Notice is given or (iib) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. ~~For~~ If the ~~purposes of~~ Indemnitor notifies the ~~immediately preceding sentence, an Indemnitor's failure to give a timely~~ Indemnified Party in the Claim Response ~~shall not be deemed an election not to dispute a Claim Notice unless~~ that it disputes the claim made by the Indemnified Party, then the Indemnitor and the Indemnified Party shall ~~have given~~ endeavor in good faith for a ~~second Claim Notice after expiration~~ period of thirty (30) days to settle and compromise such claim, and if unable to agree on any settlement or compromise, such claim for indemnification shall be settled by arbitration in accordance with the ~~Response Period and~~provisions of Section 11.1 of this Agreement, ~~another 20 days after the date on which the Indemnified Party~~ and any Loss established by reason of such settlement, compromise or arbitration shall ~~have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period~~be deemed to be finally determined. (b) ~~If any Indemnitor~~ Any Loss that is finally determined in the manner set forth in Section 10.5(a) shall be ~~obligated~~ paid by the Indemnitor to ~~indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such~~ the Indemnified Party within 30 thirty (30) days after (a) the last day of the Claim Response Period or (b) the ~~amount to~~ date on which such ~~Indemnified Party~~ settlement, compromise or arbitration described in the last sentence of Section 10.5(a) shall have been deemed to be ~~entitled. In~~ finally determined, as the ~~event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party~~ case may ~~pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement~~be. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime ~~Rate. The~~ Rate plus two percent (2%) per annum, and the Prime Rate in effect on the first (1st) business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter.

Appears in 1 contract

Samples: Formation Agreement (Crown Castle International Corp)

Procedure for Claims. (a) ~~Any Person~~ An Indemnified Buyer Party that desires to seek indemnification under any part of this ~~Article X (each, an “Indemnified Party”)~~ Section 10 shall give notice (a “Claim Notice”) to each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) prior to any applicable Expiration Date specified below. Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Buyer Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Buyer Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Buyer Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Buyer Party that has given a Claim Notice (a “Claim Response”) within 60 20 days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or and (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Buyer Party hereunder, such Indemnitor shall pay to such Indemnified Buyer Party within 30 days after the last day of the Response Period the amount to which such Indemnified Buyer Party shall be entitled. ~~In the event of~~ If there shall be a dispute as to the amount or manner of indemnification under this ~~Article X~~Section 10, the Indemnified Buyer Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any ~~Indemnitor~~ Indemnitor, but any dispute shall be resolved in accordance with Section 13.5 to the ~~arbitration provisions of this Agreement~~extent that it may be applicable. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Buyer Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate~~. The~~ , and the Prime Rate in effect on the first ~~business day~~ Business Day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter. (c) Notwithstanding any other provision of this Section 10, and except with respect to the provisions regarding post-closing adjustments in Section 2.5 or the purchase by Seller of uncollected Accounts Receivable in Section 7.8, an Indemnified Buyer Party shall be entitled to indemnification under Section 10.1(a)(i) only when the aggregate of all Damages to all Indemnified Buyer Parties exceeds $250,000 (the “Threshold Amount”); provided, however, that after exceeding such amount, all Damages back to the first dollar shall be recoverable by the Indemnified Buyer Parties. The calculation of the Threshold Amount shall include any Damages incurred by an Indemnified Buyer Party for which the Indemnified Buyer Party would have been entitled to claim indemnification under this Section 10 with respect to a breach of representation or warranty but for such representation or warranty being qualified by materiality, the knowledge of a particular party or related exceptions. In no event shall the Seller Parties be obligated to indemnify the Indemnified Buyer Parties under Section 10.1(a)(i) for an aggregate amount in excess of an amount equal to the Escrow Payment (the “Cap”). Notwithstanding the foregoing, neither the Threshold Amount nor the Cap shall apply to the representations or warranties set forth in Sections 4.1, 4.2, 4.3, 4.5, 4.7, 4.11, 4.14(c)(i)-(iii), 4.14(d)(i)-(iv), 4.14(e)(i)-(ii), 4.16, and 4.25. In addition, in the case of a claim for Damages that may be made based on items set forth in more than one of clauses (a)(i) through (a)(vi) of Section 10.1(a), an Indemnified Buyer Party may make such claim based on any one of the clauses in Section 10.1(a), except to the extent that such claim is based solely on only one of such clauses.

Appears in 1 contract

Samples: Asset Purchase Agreement (CSS Industries Inc)

Procedure for Claims. ~~(a) Any Person~~ 10.4.1. An Indemnified SCT Party or an Indemnified ABT Party that desires to seek indemnification under any part of this ~~Article X~~ Section 10 (each, an “"Indemnified Party”") shall give notice (a “"Claim Notice”") to each party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor”") prior to any applicable Expiration Date specified below. Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 20 days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or and (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. ~~(b)~~ 10.4.2. If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. ~~In the event of~~ If there shall be a dispute as to the amount or manner of indemnification under this ~~Article X~~Section 10, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any ~~Indemnitor~~ Indemnitor, but any dispute shall be resolved in accordance with Section 12.6 to the ~~arbitration provisions of this Agreement~~extent that it may be applicable. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate~~. The~~ , and the Prime Rate in effect on the first ~~business day~~ Business Day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter. 10.4.3. Notwithstanding any other provision of this Section 10, except as set forth below in this Section and with respect to the provisions regarding a Merger Consideration Adjustment in Section 2.4, an Indemnified Party shall be entitled to indemnification with respect to inaccuracy of any representation or warranty made hereunder only when the aggregate of all Damages to such Indemnified Party exceeds One Hundred Fifty Thousand Dollars ($150,000) (the "Threshold Amount") and then such Indemnified Party shall be entitled to indemnification for all of its Damages, including the Damages counted in achieving the Threshold Amount. In addition, the calculation of the Threshold Amount shall include any Damages incurred by an Indemnified Party for which the Indemnified Party would have been entitled to claim indemnification under this Section 10 with respect to a breach of representation or warranty but for such representation or warranty being qualified by materiality or the knowledge of a particular party. Notwithstanding the preceding, the Threshold Amount shall not apply with respect to inaccuracy of the representations and warranties in Sections 4.3.1, 4.3.2, 4.3.3, 4.3.4, 4.4.1, 4.4.2. and 4.9. In no event shall an Indemnitor be obligated to indemnify an Indemnified SCT Party or an Indemnified ABT Party, as the case may be, under this Section 10 for amounts in excess of the Merger Consideration (the "Cap"). Any amounts payable as a Merger Consideration Adjustment shall be deducted from the Cap. 10.4.4. In calculating any indemnification payment required to be made pursuant to this Section 10, the amount of such payment shall be increased by the amount of any additional Tax cost incurred by Indemnified Party as a result of the receipt of such payment (including any additional amounts received pursuant to the foregoing) and reduced by the amount of any Tax benefit actually realized by the Indemnified Party in respect of the matter for which indemnification is claimed.

Appears in 1 contract

Samples: Merger Agreement (Systems & Computer Technology Corp)

Procedure for Claims. ~~(a) Any Person that desires~~ An Indemnified Party wishing to ~~seek~~ assert a claim for indemnification under ~~any part of~~ this Article ~~X (each, an “Indemnified Party”)~~ VI shall ~~give~~ deliver to the Indemnifying Party a written notice (a ~~“Claim Notice”~~"CLAIM NOTICE") which contains (i) a description and the amount (the "CLAIMED AMOUNT") of any Damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to ~~each party responsible or alleged to be responsible for~~ indemnification ~~hereunder (an “Indemnitor”) prior to any applicable Expiration Date specified below. Such notice shall explain with specificity the nature~~ under this Article VI and a reasonable explanation of the ~~claim, the specific Article and section of this Agreement to which the claim relates and the parties known to be involved~~basis therefor, and ~~shall specify~~ (iii) a demand for payment in the amount of ~~the estimated damages relating thereto~~such Damages. ~~If the matter to which~~ Within 20 days after delivery of a ~~claim relates shall not have been resolved as of the date of the~~ Claim Notice, the Indemnifying Party shall deliver to the Indemnified Party ~~shall estimate~~ a written response in which the ~~amount~~ Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the ~~claim~~ Claimed Amount (in which case such response shall be accompanied by a payment by the ~~Claim Notice~~Indemnifying Party to the Indemnified Party of the Claimed Amount, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the Claimed Amount (the "AGREED AMOUNT") (in which case such response shall ~~also specify therein~~ be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the ~~claim has not yet been liquidated (an “Unliquidated Claim”)~~Indemnified Party is entitled to receive any of the Claimed Amount. If ~~an Indemnified~~ the Indemnifying Party ~~gives a Claim Notice for an Unliquidated Claim~~in such response contests the payment of all or part of the Claimed Amount, the Indemnifying Party and the Indemnified Party shall ~~also give a second Claim Notice (the “Liquidated Claim Notice”)~~ use good faith efforts to resolve such dispute. If such dispute is not resolved within 60 days ~~after~~ following the ~~matter giving rise to~~ delivery by the ~~claim becomes finally resolved~~Indemnifying Party of such response, the Indemnifying Party and the ~~Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any~~ Indemnified Party ~~that has given~~ shall each have the right to submit such dispute to a ~~Claim Notice (a “Claim Response”) within 60 days (the “Response Period”) after the later~~ court of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given competent jurisdiction in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In the event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarterSection 11.12.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Aspen Technology Inc /De/)

Procedure for Claims. (a) Any Person ~~that~~ who desires to seek indemnification under any part of this ~~Article X~~ Section 10 (each, an “Indemnified Party”) shall give written notice in reasonable detail (a “Claim Notice”) to each ~~party~~ Party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) and the Escrow Agent prior to any applicable Expiration Date ~~specified below~~(as defined in Section 10.5). Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 30 days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any ~~Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any~~ Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response in accordance with the terms hereof or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party ~~hereunder~~pursuant to this Section 10, such Indemnitor shall pay to such Indemnified Party ~~within 30 days after the last day of the Response Period~~ the amount to which such Indemnified Party shall be ~~entitled. In~~ entitled within 15 Business Days after the ~~event of a dispute as~~ day on which such Indemnitor became so obligated to the ~~amount or manner of indemnification under this Article X,~~ Indemnified Party. If the Indemnified Party ~~may pursue whatever legal remedies may~~ shall be ~~available for recovery~~ an Indemnified Buyer Party, it shall first seek payment of the Damages ~~claimed~~ to which it is entitled under this Section 10 from ~~any Indemnitor in accordance with~~ the ~~arbitration provisions~~ Escrow Funds, but only to the extent that the Escrow Funds are not subject to other claims for indemnification; thereafter, if the amount of ~~this Agreement~~the Escrow Funds available for payment of Damages is less than the amount of Damages to which such Indemnified Buyer Party is entitled, such Indemnified Buyer Party shall seek indemnification directly from the Stockholders. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to LIBOR plus 3% (three percent). (c) If, during the ~~Prime Rate~~Response Period, an Indemnified Party receives a Claim Response from the Indemnitor, then for a period of 45 days (the “Resolution Period”) after the Indemnified Party’s receipt of such Claim Response, the Indemnified Party and the Indemnitor shall endeavor to resolve any dispute arising therefrom. ~~The Prime Rate~~ If such dispute is resolved by the parties during the Resolution Period, the amount that the parties have specified as the amount to be paid by the Indemnitor, if any, as settlement for such dispute shall be conclusively deemed to be an obligation of such Indemnitor. If the parties are unable agree upon a resolution to such dispute prior to the expiration of the Resolution Period (or any extension thereto to which the Indemnitor and Indemnified Party agree in ~~effect~~ writing), the issue shall be resolved in accordance with Section 13.2 hereof. (d) If the Indemnified Party is an Indemnified Buyer Party and, pursuant to Section 10.4(b), such Indemnified Buyer Party is obligated to seek any portion of the funds to which such Indemnified Buyer Party is entitled from the Escrow Funds, then, within two Business Days from the date on which such Indemnified Buyer Party became entitled to such funds, the ~~first business day of each calendar quarter~~ Indemnified Party and the Indemnitor shall ~~apply~~ provide written instructions to Escrow Agent as to (i) the amount of funds, if any, to be dispersed from the ~~unpaid obligation during~~ Escrow Funds, and (ii) instructions as to the manner in which such ~~calendar quarter~~funds shall be dispersed to the Indemnified Buyer Party. (e) No Party will have any liability (for indemnification or otherwise) for any Damages for punitive, exemplary or special damages of any nature, except to the extent such punitive, exemplary or special damages are awarded to a third party against an Indemnified Party in circumstances in which such Indemnified Party is entitled to indemnification hereunder. (f) Notwithstanding any other provision of this Section 10, except as provided below in this subparagraph (f), the Indemnified Buyer Party, on the one hand, and the Indemnified Seller Parties on the other hand, shall be entitled to indemnification hereunder by Seller Parties or by Buyer, respectively, only when the aggregate of all Damages to such Indemnified Buyer Parties exceeds *** (the “Deductible Amount”) and then only to the extent of such excess amount; provided, however, that the Deductible Amount shall not apply with respect to (i) a breach of Seller Parties’ representations or warranties under Sections 4.1, 4.2, 4.4, 4.14 or 4.26 or in the related provisions of the Closing Certificates, a breach of Buyer’s representations or warranties under Sections 5.1, 5.2, 5.4, 5.5 or 5.6, or a breach of any representations or warranty of a Party to this Agreement made with an intent to mislead or defraud, (ii) a breach of any covenants hereunder or (iii) a claim for indemnification under Section 10.1.2(C). In addition, the calculation of the Deductible Amount shall include any Damages incurred by an Indemnified Party for which the Indemnified Party would have been entitled to claim indemnification under this Section 10 with respect to a breach of a representation or warranty but for such Claim being excluded as a result of the qualification of such representation or warranty by materiality or similar qualifications or exceptions. The maximum amount of Damages for which the Stockholders or Buyer, respectively, shall be liable under this Agreement shall be limited to the following (the “Indemnification Cap”):

Appears in 1 contract

Samples: Stock Purchase Agreement (Air Products & Chemicals Inc /De/)

Procedure for Claims. (a) ~~Any Person~~ Subject to Section 7.03(c) and Section 7.03(d) below, an Indemnified Buyer Party or an Indemnified Seller Party (each an “Indemnified Party”) that desires to seek indemnification under any part of this Article ~~X (each, an “Indemnified Party”)~~ VII shall give a written notice (a “Claim Notice”) to each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) prior to ~~any applicable~~ the Expiration ~~Date specified below~~Date. Such ~~notice~~ Claim Notice shall ~~explain with specificity~~ describe in detail the nature of the ~~claim~~claim (each, ~~the specific Article and section of this Agreement to which the claim relates~~ a “Claim”) and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. ~~If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the~~ Such Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ may also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 thirty (30) days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond in writing to ~~any~~ the Indemnified Party that has given a such Claim Notice (such written response, a “Claim Response”) within 60 forty-five (45) days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor ~~giving the Claim Response~~ disputes the claim described in the Claim ~~Notice~~Notice and/or the amount thereof. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such ~~claim~~ claim, as set forth in such Claim Notice, shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If The Company Stockholders shall not have any ~~Indemnitor~~ liability under Section 7.01 for any individual Claim (or series of related Claims) unless the incident giving rise to such Claim involves an amount in excess of $15,000 (“Permitted Claims”) and unless and until the amount of the aggregate indemnification obligations under such Section 7.01 exceeds $250,000 (the “Deductible”), whereupon the Company Stockholders shall indemnify, defend, protect and hold harmless the Indemnified Buyer Parties for the amount of all Permitted Claims in excess of the Deductible; provided, that the limitations specified in this sentence shall not apply to Claims made pursuant to Section 7.01(c) or (f) or to Claims which are based upon fraud. Notwithstanding any provision of this Agreement to the contrary, in no event shall the Company Stockholders be obligated to indemnify an the Indemnified Buyer Parties (i) for Claims made pursuant to Sections 7.01(a), (b), (d), (e) and (f) for amounts in excess of the General Indemnification Escrow Fund and such General Indemnification Escrow Fund shall be Indemnified Buyer Parties’ sole and exclusive recourse for indemnification claims under such Sections and (ii) for Claims made pursuant to Section 7.01(c) for amounts in excess of the Dissenters Indemnification Escrow and such Dissenters Indemnification Escrow Fund shall be Indemnified Buyers Parties’ sole and exclusive recourse for indemnification claims under such Section. The amount of any Claims payable under Section 7.01 shall not include any liabilities to the extent accrued or reflected in the finally-determined Closing Statement of Working Capital. (c) Notwithstanding anything to the contrary set forth herein, any Claim Notice relating to any indemnification claim under Section 7.01 shall be delivered by the relevant Indemnified Buyer Party ~~hereunder~~to the Stockholders’ Representative, ~~such Indemnitor~~ as agent for and on behalf of, the Company Stockholders. No Company Stockholder shall ~~pay~~ have any obligation or responsibility with respect to any Claim Notice relating to any indemnification claim under Section 7.01 delivered to any party other than the Stockholders’ Representative. (d) Notwithstanding anything to the contrary set forth herein, (i) the Stockholders’ Representative shall obtain and hold the rights and benefits of each Indemnified Seller Party provided in this Article VII in trust for, and on behalf, of each such Indemnified Seller Party ~~within 30 days after the last day of the Response Period the amount~~ and (ii) any Claim Notice with respect to ~~which such Indemnified Party~~ any indemnification claim under Section 7.02 shall be ~~entitled. In~~ made or given by the ~~event of a dispute as to~~ Stockholders’ Representative in the ~~amount or manner of indemnification under this Article X~~name, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when dueand on behalf of, ~~then such Indemnitor Party shall also be obligated to pay to~~ the applicable Indemnified ~~Party interest on~~ Seller Party. Neither Parent nor the ~~unpaid amount for each day during which~~ Surviving Corporation shall have any obligation or responsibility with respect to any Claim Notice relating to any indemnification claim under Section 7.02 delivered by any party other than the ~~obligation remains unpaid at an annual rate equal~~ Stockholders’ Representative and all obligations of Parent and the Surviving Corporation to the ~~Prime Rate. The Prime Rate in effect on~~ Indemnified Seller Parties pursuant to this Article VII, including payment and notice obligations, shall be deemed satisfied if the ~~first business day of each calendar quarter shall apply~~ applicable delivery, payment or other action is given, made or taken by, Parent or the Surviving Corporation with respect to the ~~amount~~ Stockholders’ Representative (as representative of the ~~unpaid obligation during such calendar quarter~~Indemnified Seller Parties).

Appears in 1 contract

Samples: Merger Agreement (Radio One Inc)

Procedure for Claims. ~~(a) Any Person that desires~~ An Indemnified Party wishing to ~~seek~~ assert a claim for indemnification under ~~any part of~~ this Article ~~X (each, an “Indemnified Party”)~~ IV shall ~~give~~ deliver to the Indemnifying Party a written notice (a ~~“Claim Notice”~~"CLAIM NOTICE") which contains (i) a description and the amount (the "CLAIMED AMOUNT") of any Damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to ~~each party responsible or alleged to be responsible~~ indemnification under this Article IV for ~~indemnification hereunder (an “Indemnitor”) prior to any applicable Expiration Date specified below. Such notice shall explain with specificity the nature~~ such Damages and a reasonable explanation of the ~~claim, the specific Article and section of this Agreement to which the claim relates and the parties known to be involved~~basis therefor, and ~~shall specify~~ (iii) a demand for payment in the amount of ~~the estimated damages relating thereto~~such Damages. If the ~~matter~~ Indemnified Party is seeking to ~~which~~ enforce such claim pursuant to the Escrow Agreement, the Indemnifying Party shall deliver a ~~claim relates shall not have been resolved as~~ copy of the ~~date~~ Claim Notice to the Escrow Agent. Within twenty business days after delivery of ~~the~~ a Claim Notice, the Indemnifying Party shall deliver to the Indemnified Party ~~shall estimate~~ a written response (the ~~amount~~ "RESPONSE") in which the Indemnifying Party shall: (i) agree that the Indemnified Party is entitled to receive all of the ~~claim~~ Claimed Amount (in which case the ~~Claim Notice, but~~ Response shall ~~also specify therein that~~ be accompanied by a payment by the ~~claim has not yet been liquidated (an “Unliquidated Claim”). If an~~ Indemnifying Party to the Indemnified Party ~~gives a Claim Notice for an Unliquidated Claim~~of the Claimed Amount, by check or by wire transfer; PROVIDED THAT if the Indemnified Party is the Buyer or the Company and the Indemnified Party is seeking to enforce such claim pursuant to the Escrow Agreement the Indemnifying Party and the Indemnified Party shall ~~also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 days after the matter giving rise~~ deliver to the ~~claim becomes finally resolved, and~~ Escrow Agent within three days following the ~~Second Claim Notice shall specify the amount~~ delivery of the ~~claim. Each Indemnitor~~ Response, a written notice executed by both parties instructing the Escrow Agent to ~~which a Claim Notice is given shall respond~~ disburse to ~~any~~ the Indemnified Party ~~that has given~~ a ~~Claim Notice~~ number of Escrow Shares having a Fair Market Value (~~a “Claim Response”~~as defined in the Escrow Agreement) ~~within 60 days (~~equal to the ~~“Response Period”) after the later of (i) the date that the Claim Notice is given or~~ Claimed Amount), (ii) ~~if a Claim Notice~~ agree that the Indemnified Party is ~~first given with respect~~ entitled to ~~an Unliquidated Claim~~receive part, but not all, of the ~~date on~~ Claimed Amount (the "AGREED AMOUNT") (in which case the ~~Liquidated Claim Notice is given. Any Claim Notice or Claim~~ Response shall be ~~given in accordance with~~ accompanied by a payment by the ~~notice requirements hereunder,~~ Indemnifying Party to the Indemnified Party of the Agreed Amount by check or by wire transfer; PROVIDED THAT if the Indemnified Party is the Buyer or the Company and ~~any Claim Response shall specify whether or not~~ the ~~Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails~~ Indemnified Party is seeking to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of enforce such claim ~~shall be conclusively deemed~~ pursuant to ~~be an obligation of such Indemnitor. For~~ the ~~purposes of~~ Escrow Agreement the ~~immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless~~ Indemnifying Party and the Indemnified Party shall ~~have given a second Claim Notice after expiration~~ deliver to the Escrow Agent within three days following the delivery of the Response, a written notice executed by both Parties instructing the Escrow Agent to disburse to the Indemnified Party a number of Escrow Shares having a Fair Market Value (as defined in the Escrow Agreement) equal to the Agreed Amount) or (iii) dispute that the Indemnified Party is entitled to receive any of the Claimed Amount. If the Indemnifying Party in the Response ~~Period and~~disputes the payment of all or part of the Claimed Amount, ~~another 20 days after~~ the ~~date on which~~ Indemnifying Party and the Indemnified Party shall ~~have given~~ use good faith efforts to resolve such ~~second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within~~ dispute. If such ~~period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party~~ dispute is not resolved within 30 days ~~after~~ following the ~~last day~~ delivery by the Indemnifying Party of such response, the ~~Response Period~~ Indemnifying Party and the ~~amount to which such~~ Indemnified Party shall ~~be entitled~~each have the right, after first complying with the requirements of Section 7.9, to commence litigation for purposes of resolving such dispute. ~~In the event~~ For purposes of ~~a dispute as~~ this Section 4.3, any references to the ~~amount~~ Indemnified Party or ~~manner~~ the Indemnifying Party shall, if one or more of ~~indemnification~~ the Stockholders comprise the Indemnified Party or the Indemnifying Party, be deemed to refer to the Stockholder Representative. The Stockholder Representative shall have full power and authority on behalf of each Stockholder to take any and all actions on behalf of, execute any and all instruments on behalf of, and execute or waive any and all rights of, the Stockholders under this Article ~~X, the Indemnified Party may pursue whatever legal remedies may be available~~ IV. The Stockholder Representative shall have no liability to any Stockholder for ~~recovery~~ any action taken or omitted on behalf of the ~~Damages claimed from any Indemnitor in accordance with the arbitration provisions of~~ Stockholders pursuant to this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarterArticle IV.

Appears in 1 contract

Samples: Stock Purchase Agreement (Sapient Corp)

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Verticalnet Inc)

Procedure for Claims. (a) ~~Any Person~~ An Indemnified Buyer Party or an Indemnified Seller Party that desires to seek indemnification under any part of this ~~Article X~~ Section 7 (each, an “Indemnified Party”) shall give notice (a “Claim Notice”) to each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) prior to any applicable Expiration ~~Date specified below~~Date. Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 20 days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or and (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such ~~Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure~~ Indemnitor that shall give rise to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such periodDamages under this Section 7. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In If the ~~event~~ Indemnified Party shall be an Indemnified Buyer Party, it shall first seek payment of the Damages to which it is entitled under this Section 7 from the 2007 Payment, then from the 2006 Payment and then from the Escrow Funds, but only to the extent that the 2007 Payment, the 2006 Payment and the Escrow Funds are then being held by the Buyer and are not subject to other claims for indemnification; thereafter, if the amount of the 2007 Payment, the 2006 Payment and the Escrow Funds available for payment of Damages is less than the amount of Damages to which such Indemnified Buyer Party is entitled, such Indemnified Buyer Party shall seek indemnification directly from the Seller. Subject to Section 7.3(c), if there shall be a dispute as to the amount or manner of indemnification under this ~~Article X~~Section 7, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any ~~Indemnitor in accordance with the arbitration provisions of this Agreement~~Indemnitor. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime ~~Rate. The~~ Rate plus 5%, and the Prime Rate in effect on the first ~~business day~~ Business Day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter. (c) If, during the Response Period, an Indemnified Party receives a Claim Response from the Indemnitor, then for a period of 45 days (the “Resolution Period”) after the Indemnified Party’s receipt of such Claim Response, the Indemnified Party and the Indemnitor shall endeavor to resolve any dispute arising therefrom. If such dispute is resolved by the parties during the Resolution Period, the amount that the parties have specified as the amount to be paid by the Indemnitor, if any, as settlement for such dispute shall be conclusively deemed to be an obligation of such Indemnitor. If the parties are unable to agree upon a resolution to such dispute prior to the expiration of the Resolution Period (or any extension thereto to which the Indemnitor and the Indemnified Party agree in writing), the issue shall be presented to the American Arbitration Association in Philadelphia, Pennsylvania (the “AAA”) for determination. The parties shall have available to them all rights to conduct discovery available to opposing parties in federal district court litigation in the Eastern District of Pennsylvania. The written determination of the AAA shall be binding upon the parties. (d) Notwithstanding any other provision of this Section 7, an Indemnified Party shall be entitled to indemnification with respect to any inaccuracy of any representation or warranty made hereunder only when the aggregate of all Damages to such Indemnified Party exceeds $20,000 (the “Threshold Amount”) and then such Indemnified Party shall be entitled to indemnification for all of its Damages, including the Damages counted in achieving the Threshold Amount; provided, however, that for purposes of the foregoing, Damages to the Indemnified Buyer Parties shall be aggregated. Except as otherwise set forth herein, Seller shall not be obligated to indemnify Buyer under Section 7.1(a) for an amount in excess of the actual amounts received from the 2005 Payment, 2006 Payment and 2007 Payment (the “Cap”). Notwithstanding the foregoing, neither the Threshold Amount or the Cap shall apply to (A) any obligation to indemnify the Buyer for a breach or inaccuracy of a representation or warranty set forth in Sections 4.2 (“Capitalization and Ownership”), 4.3 (“Authority and Binding Effect”), 4.4 (“Validity of the Transactions”), 4.6 (“Taxes”), or 4.19 (“Litigation”). The calculation of the Threshold Amount shall include any Damages incurred by an Indemnified Party for which the Indemnified Party would have been entitled to claim indemnification under this Section 7 with respect to a breach of representation or warranty but for such representation or warranty being qualified by materiality, the knowledge of a particular party or related exceptions. Nothing herein shall be deemed to limit or restrict in any manner any rights or remedies that any party has, or might have, at law, in equity or otherwise, against any other party hereto, based on any willful misrepresentation, willful breach of warranty or willful failure to fulfill any agreement or covenant.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Nutri System Inc /De/)

Procedure for Claims. ~~(a)~~ Any Indemnified Person ~~that~~ who desires to seek indemnification under any part of this ~~Article X (each, an “Indemnified Party”)~~ Section 7.1 shall give written notice in accordance with Section 7.3.8 in reasonable detail (a “"Claim Notice”") to each party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor~~”) prior to any applicable Expiration Date specified below~~"). Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified ~~Party~~ Person shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 sixty (60) days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 thirty (30) days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any ~~Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any~~ Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response in accordance with the terms hereof or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In the event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter.

Appears in 1 contract

Samples: Merger Agreement (Metasource Group Inc)

Procedure for Claims. (a) ~~Any Person~~ An Indemnified Acquiror Party or an Indemnified Target Party that desires to seek indemnification under any part of this ~~Article X~~ Section 12 (each, an “Indemnified Party”) shall give notice (a “Claim Notice”) to each ~~party~~ Party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) prior to any applicable Expiration ~~Date specified below~~Date. The Stockholders’ Representative shall administer all claims for indemnification under this Section 12. Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the applicable Claim Notice, the Indemnified Party shall estimate in good faith the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 30 days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the actual amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 30 days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or and (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. ~~For~~ No delay on the ~~purposes~~ part of ~~the immediately preceding sentence,~~ an ~~Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute~~ Indemnified Acquiror Party or Indemnified Target Party in delivering a Claim Notice shall relieve the Indemnifying Target Parties or Acquiror respectively from any of their indemnification obligations under this Section 12 unless (and then only to the ~~Indemnified Party shall have given a second Claim Notice after expiration of~~ extent that) the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such periodIndemnifying Target Parties or Acquiror respectively are/is prejudiced thereby. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. ~~In the event of~~ If there shall be a dispute as to the amount or manner of indemnification under this ~~Article X~~Section 12, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any ~~Indemnitor in accordance with the arbitration provisions of this Agreement~~Indemnitor. If any Indemnitor fails to pay all or part of any indemnification obligation when ~~due~~due (which shall be the date that such claim for Damages is finally resolved in favor of the Indemnified Party pursuant to the terms hereof), then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate~~. The~~ , and the Prime Rate in effect on the first ~~business day~~ Business Day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter. (c) Notwithstanding any other provision of this Section 12: (i) an Indemnified Party shall be entitled to indemnification with respect to Sections 12.1(a)(i) or 12.2(a)(i), as the case may be, only when the aggregate of all Damages to such Indemnified Party exceeds $165,000 (the “Threshold Amount”) and then such Indemnified Party shall be entitled to indemnification for all of its Damages above the Threshold Amount; provided, that the Threshold Amount shall not be applicable to Fundamental Target Matters or Fundamental Acquiror Matters; (ii) in no event shall the aggregate indemnification obligations of the Indemnifying Target Parties, taken together, as to Section 12.1(a), exceed 10% of the Merger Consideration value (the “Maximum Indemnification Amount”) (where the Merger Consideration is valued based on the Common Value Per Share and Series C Value Per Share, as applicable, as of the Closing Date), except in the case of (x) any inaccuracy of any representation or warranty of Target in Sections 4.1(a) (Organization), 4.2(a) (Authority), 4.4(a)-(b) (Capitalization), 4.18 (Target Employee Benefit Plans), 4.19 (Taxes) and 4.24 (Brokerage Fees) (collectively, the “Fundamental Target Representations”) (y) the Indemnifiable Target Matters described in clauses (ii)-(ix) of Section 12.1(a), and (z) the Indemnifiable Target Matters described in clause (x) of Section 12.1(a) to the extent they pertain to the immediately preceding clauses (x) and (y) (collectively, the “Fundamental Target Matters”); provided that in the case of the Fundamental Target Matters, in no event shall the aggregate indemnification obligations of the Indemnifying Target Parties, taken together, exceed 100% of the Merger Consideration value (where the Merger Consideration is valued based on the Common Value Per Share and Series C Value Per Share, as applicable, as of the Closing Date); (iii) in no event shall the aggregate indemnification obligations of the Acquiror, as to Section 12.2, exceed the Maximum Indemnification Amount, except in the case of (x) any inaccuracy of any representation or warranty of Acquiror in Sections 6.1(a) (Organization), 6.2(a) (Authority), 6.3(a)-(b) (Capitalization), 6.11 (Acquiror Employee Benefit Plans), 6.12 (Taxes) and 6.16 (Brokerage Fees) (collectively, the “Fundamental Acquiror Representations”), (y) the Indemnifiable Acquiror Matters described in clause (ii) of Section 12.2(a), and (z) the Indemnifiable Acquiror Matters described in clause (b) of Section 12.2 to the extent they pertain to the immediately preceding clauses (x) and (y) (collectively, the “Fundamental Acquiror Matters”); provided that in the case of the Fundamental Acquiror Matters, in no event shall the aggregate indemnification obligations of Acquiror exceed 100% of the Merger Consideration value (where the Merger Consideration is valued based on the Common Value Per Share and Series C Value Per Share, as applicable, as of the Closing Date); (iv) clauses (ii) and (iii) notwithstanding, as to any Claims arising from Fraud with respect to this Agreement committed by Target, any Target Principal Holder or any Acquiror, there shall be no limitation on indemnification obligations (it being understood that as to such Fraud committed by a Target Principal Holder (that does not also constitute Fraud committed by Target), such holder (and not the other Indemnifying Target Parties) shall be the liable party); The parties hereto agree and acknowledge that the aforementioned liability limits are overlapping and inclusive of one another (whether consumed by moving from a lower limit to a higher limit or from a higher limit to a lower limit) and not separate from one another. By way of illustration, in the event a claim based on a breach of a representation and warranty contained in Section 4.4 (Capitalization) is made after all of the Escrow Fund has been exhausted, then the maximum amount that may be recovered from any Indemnifying Target Party shall be limited to an amount equal to the difference between (i) such Indemnifying Target Party’s Pro Rata Share of 100% of the Merger Consideration and (ii) such Indemnifying Target Party’s Pro Rata Share of the Escrow Fund (where the Merger Consideration and Escrow Fund are valued based on the Common Value Per Share and Series C Value Per Share, as applicable, as of the Closing Date). (v) for purposes of this Section 12 and solely with respect to (A) determining whether a breach of representation or warranty has occurred (other than as to knowledge qualifiers, for which this clause (A) is not applicable) and (B) the calculation of Damages, including without limitation for purposes of calculating the Threshold Amount, resulting from a breach of representation or warranty, all of the representations and warranties set forth in this Agreement or in any certification delivered pursuant hereto that are qualified by materiality, Material Adverse Effect, or the knowledge of a particular Party shall be deemed to have been made without any such qualification; (vi) Damages shall exclude special, consequential, indirect or punitive damages, unless paid to a third party by an Indemnified Acquiror Party or Indemnified Target Party. Damages shall be calculated net of actual recoveries under existing insurance policies (net of any applicable collection costs and reserves, deductibles, premium adjustments and retrospectively rated premiums), it being understood that an Indemnified Acquiror Party or Indemnified Target Party shall not be obligated to seek recovery under insurance policies with respect to any particular Indemnifiable Target Matter or Indemnifiable Acquiror Matter respectively; Notwithstanding anything to the contrary herein, Damages shall exclude the employer portion of any payroll Taxes associated with the shares of Acquiror Common Stock issuable pursuant to this Agreement; and (vii) No Indemnified Acquiror Party or Indemnified Target Party may make a claim for Fraud with respect to the disclosure of any matter arising after the date hereof that Target discloses as an exception to the certificate delivered pursuant to Section 7.1(a) or Acquiror discloses as an exception to the certificate delivered pursuant to Section 7.2(a) (which, for the avoidance of doubt, such disclosure being for informational purposes only and not as a limitation to the Indemnified Acquiror Parties’ or Indemnified Target Parties’ ability to otherwise seek recovery for Damages arising from any such disclosure pursuant to Section 12), unless the matter being disclosed has arisen out of or results from the Fraud of the party disclosing it.

Appears in 1 contract

Samples: Merger Agreement (Edgar Online Inc)

Procedure for Claims. ~~(a) Any Person~~ 11.3.1 An Indemnified SCT Party or an Indemnified Company Party that desires to seek indemnification under any part of this ~~Article X~~ Section 11 (each, an “"Indemnified Party”") shall give notice (a “"Claim Notice~~”) to each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”)~~ "), prior to the Expiration Date, (a) with respect to a claim by an Indemnified SCT Party, from SCT to the Stockholder's Representative on behalf of the Stockholders (the "Company Indemnitors") or (b) with respect to a claim by an Indemnified Company Party, from the Stockholder's Representative to SCT on behalf of SCT, Acquisition Sub and the Surviving Company (the "SCT Indemnitors") (each of the Company Indemnitors, on the one hand, and the SCT Indemnitors, on the other hand, an "Indemnitor") (any ~~applicable Expiration Date specified below~~party delivering such a Claim Notice, a "Notifying Party"; and any party receiving such a Claim Notice, a "Receiving Party"). Such ~~notice~~ Claim Notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the ~~Indemnified~~ Notifying Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If ~~an Indemnified~~ a Notifying Party gives a Claim Notice for an Unliquidated Claim, the ~~Indemnified~~ Notifying Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. ~~Each Indemnitor~~ With respect to ~~which a~~ any Claim ~~Notice is given~~ Notice, the Receiving Party shall respond to any ~~Indemnified~~ Notifying Party that has given a Claim Notice (a “"Claim Response”") within 60 30 days (the “"Response Period”") after the later of (ia) the date that the Claim Notice is given or and (iib) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the ~~Indemnitor~~ Receiving Party giving the Claim Response disputes the claim described in the Claim Notice. If ~~any Indemnitor~~ a Receiving Party fails to give a Claim Response within the Response Period, such ~~Indemnitor~~ Receiving Party shall be deemed not to dispute the claim described in the related Claim Notice. If ~~any Indemnitor~~ a Receiving Party elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of the Indemnitors represented by such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such periodReceiving Party. ~~(b)~~ 11.3.2 If ~~any Indemnitor~~ the SCT Indemnitors shall be obligated to indemnify an Indemnified Company Party hereunder, ~~such Indemnitor~~ the SCT Indemnitors shall pay to such Indemnified Company Party within 30 days after the last day of the Response Period the amount to which such Indemnified Company Party shall be entitled. ~~In the event of~~ If there shall be a dispute as to the amount or manner of indemnification under this ~~Article X~~Section 11, the Indemnified Company Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from the SCT Indemnitors, but any ~~Indemnitor~~ dispute shall be resolved in accordance with Section 13.6 to the ~~arbitration provisions of this Agreement~~extent that it may be applicable. If ~~any Indemnitor fails~~ the SCT Indemnitors fail to pay all or part of any indemnification obligation when due, then ~~such Indemnitor Party~~ the SCT Indemnitors shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate~~. The~~ , and the Prime Rate in effect on the first ~~business day~~ Business Day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter. 11.3.3 If the Company Indemnitors shall be obligated to indemnify an Indemnified SCT Party hereunder, the amount to which such Indemnified SCT Party shall be entitled shall be paid from the Escrow Amount within 30 days after the last day of the Response Period, in accordance with the Escrow Agreement.

Appears in 1 contract

Samples: Merger Agreement (Systems & Computer Technology Corp)

Procedure for Claims. 10.4.1. A party entitled to indemnification (~~a) Any Person that desires to seek indemnification under any part of this Article X (each,~~ an “Indemnified Party”) shall give the party required to provide such indemnification (the “Indemnifying Party”) notice of any matter which an Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement (a “Claim Notice”), within thirty (30) to each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) prior to any applicable Expiration Date specified below. Such notice shall explain with specificity the nature days of ~~the claim~~such determination, ~~the specific Article and section of this Agreement to which the claim relates and the parties known to be involved, and shall specify~~ stating the amount of the ~~estimated damages relating thereto~~Claim, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. Any failure to submit any such Claim Notice in a timely manner to the Indemnifying Party shall not relieve the Indemnifying Party of any liability hereunder, except to the extent the Indemnifying Party is actually materially prejudiced by such failure. 10.4.2. If the ~~matter to which a claim relates shall not have been resolved as of the date~~ Indemnifying Party, within thirty business days after receipt of the Claim Notice, does not give written notice to the Indemnified Party announcing its intent to contest such Claim, the Claim shall ~~estimate~~ be deemed accepted and the amount of the ~~claim~~ Claim shall be deemed a valid Claim, and the Indemnifying Party shall, within twenty business days after expiration of the prior notice period, deliver to the Indemnified Party the amount of the Claims set forth in the Claim Notice. In the event, ~~but shall also specify therein~~ however, that the ~~claim has not yet been liquidated~~ Indemnifying Party contests the assertion of a Claim by giving written notice to the Indemnified Party within the thirty business day period, then the parties shall act in good faith to reach agreement regarding such Claim. 10.4.3. The obligations and liabilities of an Indemnifying Party under this Section 10 with respect to losses arising from Claims of any third party which are subject to the indemnification provided for in this Section 10 (an “~~Unliquidated Claim~~Third Party Claims”~~). If~~ ) shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party ~~gives a Claim Notice for an Unliquidated~~ shall receive notice of any Third Party Claim, the Indemnified Party shall ~~also~~ give ~~a second~~ the Indemnifying Party notice of such Third Party Claim ~~Notice (~~within thirty days of the ~~“Liquidated Claim Notice”) within 60 days after~~ receipt by the ~~matter giving rise~~ Indemnified Party of such notice; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Section 10 except to the ~~claim becomes finally resolved,~~ extent the Indemnifying Party is actually materially prejudiced by such failure and shall not relieve the ~~Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond~~ Indemnifying Party from any other obligation or liability that it may have to any Indemnified Party otherwise than under this Section 10. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any losses arising from Claims that ~~has given a~~ may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim ~~Notice (a “Claim Response”)~~ at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within 60 five days (of the ~~“Response Period”) after~~ receipt of such notice from the ~~later of~~ Indemnified Party; provided, however, that if (i) there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the ~~date that~~ judgment of the ~~Claim Notice is given~~ Indemnified Party for the same counsel to represent both the Indemnified Party and the Indemnifying Party, or (ii) if there is a reasonable probability that such Third Party Claim ~~Notice is first given with respect~~ may have a material adverse effect on the Indemnified Party other than as a result of money damages that are reasonably expected to ~~an Unliquidated Claim,~~ be satisfied out of the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwiseIndemnification Amount, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall ~~have given~~ be entitled to participate in the defense of such Third Party Claim, at its sole cost and expense and through counsel of its own choice; and provided further, that (x) if such Third Party Claim involves a ~~second Claim Notice after expiration~~ claim for an injunction against any business or operations of the ~~Response Period and~~Indemnified Party, ~~another 20 days after~~ (y) if such Third Party Claim involves a criminal proceeding, action, indictment, allegation or investigation, or (z) if the ~~date on which~~ appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such Third Party Claim, then the Indemnified Party shall ~~have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall~~ be ~~obligated~~ entitled to ~~indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day~~ retain control of the ~~Response Period~~ defense of such Third Party Claim with counsel of its own choice (and the ~~amount to which such Indemnified~~ Indemnifying Party shall be ~~entitled~~entitled to participate in the defense of such Third Party Claim, at its sole cost and expense and through counsel of its own choice). In the event ~~of a dispute~~ the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as ~~to the amount or manner of indemnification under this Article X~~provided above, the Indemnified Party ~~may pursue whatever legal remedies~~ shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be ~~available for recovery~~ settled by the Indemnifying Party without the written consent of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarterParty.

Appears in 1 contract

Samples: Asset Acquisition Agreement (Supergen Inc)

Procedure for Claims. (a) Any Person ~~that~~ who desires to seek indemnification under any part of this ~~Article X~~ Section 10 (each, an “Indemnified Party”) shall give written notice in reasonable detail (a “Claim Notice”) to each ~~party~~ Party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) and the Escrow Agent prior to any applicable Expiration Date ~~specified below~~(as defined in Section 10.5). Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 30 days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any ~~Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any~~ Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response in accordance with the terms hereof or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party ~~hereunder~~pursuant to this Section 10, such Indemnitor shall pay to such Indemnified Party ~~within 30 days after the last day of the Response Period~~ the amount to which such Indemnified Party shall be ~~entitled. In~~ entitled within 15 Business Days after the ~~event of a dispute as~~ day on which such Indemnitor became so obligated to the ~~amount or manner of indemnification under this Article X,~~ Indemnified Party. If the Indemnified Party ~~may pursue whatever legal remedies may~~ shall be ~~available for recovery~~ an Indemnified Buyer Party, it shall first seek payment of the Damages ~~claimed~~ to which it is entitled under this Section 10 from ~~any Indemnitor in accordance with~~ the ~~arbitration provisions~~ Escrow Funds, but only to the extent that the Escrow Funds are not subject to other claims for indemnification; thereafter, if the amount of ~~this Agreement~~the Escrow Funds available for payment of Damages is less than the amount of Damages to which such Indemnified Buyer Party is entitled, such Indemnified Buyer Party shall seek indemnification directly from the Stockholders. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to LIBOR plus 3% (three percent). (c) If, during the ~~Prime Rate~~Response Period, an Indemnified Party receives a Claim Response from the Indemnitor, then for a period of 45 days (the “Resolution Period”) after the Indemnified Party’s receipt of such Claim Response, the Indemnified Party and the Indemnitor shall endeavor to resolve any dispute arising therefrom. ~~The Prime Rate~~ If such dispute is resolved by the parties during the Resolution Period, the amount that the parties have specified as the amount to be paid by the Indemnitor, if any, as settlement for such dispute shall be conclusively deemed to be an obligation of such Indemnitor. If the parties are unable agree upon a resolution to such dispute prior to the expiration of the Resolution Period (or any extension thereto to which the Indemnitor and Indemnified Party agree in ~~effect~~ writing), the issue shall be resolved in accordance with Section 13.2 hereof. (d) If the Indemnified Party is an Indemnified Buyer Party and, pursuant to Section 10.4(b), such Indemnified Buyer Party is obligated to seek any portion of the funds to which such Indemnified Buyer Party is entitled from the Escrow Funds, then, within two Business Days from the date on which such Indemnified Buyer Party became entitled to such funds, the ~~first business day of each calendar quarter~~ Indemnified Party and the Indemnitor shall ~~apply~~ provide written instructions to Escrow Agent as to (i) the amount of funds, if any, to be dispersed from the ~~unpaid obligation during~~ Escrow Funds, and (ii) instructions as to the manner in which such ~~calendar quarter~~funds shall be dispersed to the Indemnified Buyer Party. (e) No Party will have any liability (for indemnification or otherwise) for any Damages for punitive, exemplary or special damages of any nature, except to the extent such punitive, exemplary or special damages are awarded to a third party against an Indemnified Party in circumstances in which such Indemnified Party is entitled to indemnification hereunder. (f) Notwithstanding any other provision of this Section 10, except as provided below in this subparagraph (f), the Indemnified Buyer Party, on the one hand, and the Indemnified Seller Parties on the other hand, shall be entitled to indemnification hereunder by Seller Parties or by Buyer, respectively, only when the aggregate of all Damages to such Indemnified Buyer Parties exceeds $300,000 (the “Deductible Amount”) and then only to the extent of such excess amount; provided, however, that the Deductible Amount shall not apply with respect to (i) a breach of Seller Parties’ representations or warranties under Sections 4.1, 4.2, 4.4, 4.14 or 4.26 or in the related provisions of the Closing Certificates, a breach of Buyer’s representations or warranties under Sections 5.1, 5.2, 5.4, 5.5 or 5.6, or a breach of any representations or warranty of a Party to this Agreement made with an intent to mislead or defraud, (ii) a breach of any covenants hereunder or (iii) a claim for indemnification under Section 10.1.2(C). In addition, the calculation of the Deductible Amount shall include any Damages incurred by an Indemnified Party for which the Indemnified Party would have been entitled to claim indemnification under this Section 10 with respect to a breach of a representation or warranty but for such Claim being excluded as a result of the qualification of such representation or warranty by materiality or similar qualifications or exceptions. The maximum amount of Damages for which the Stockholders or Buyer, respectively, shall be liable under this Agreement shall be limited to the following (the “Indemnification Cap”):

Appears in 1 contract

Samples: Stock Purchase Agreement (Air Products & Chemicals Inc /De/)

Appears in 1 contract

Samples: Asset Purchase Agreement (On Stage Entertainment Inc)

Procedure for Claims. (a) Any Person ~~that~~ who desires to seek indemnification under any part of this Article X 11 (each, an “Indemnified Party”) shall give written notice in reasonable detail (a “Claim Notice”) to each ~~party~~ Party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”~~) prior to any applicable Expiration Date specified below~~). Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be ~~involved~~invoked, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 30 days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any ~~Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any~~ Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response in accordance with the terms hereof or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party ~~hereunder~~pursuant to this Article 11, such Indemnitor shall pay to such Indemnified Party ~~within 30 days after the last day of the Response Period~~ the amount to which such Indemnified Party shall be ~~entitled. In~~ entitled within 15 Business Days after the ~~event of a dispute as~~ day on which such Indemnitor became so obligated to the ~~amount or manner of indemnification under this Article X, the~~ Indemnified ~~Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement~~Party. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime ~~Rate~~Rate plus 5%. (c) If, during the Response Period, an Indemnified Party receives a Claim Response from the Indemnitor, then for a period of 45 days (the “Resolution Period”) after the Indemnified Party’s receipt of such Claim Response, the Indemnified Party and the Indemnitor shall endeavor to resolve any dispute arising therefrom. In the event that the parties fail to reach a resolution during the Resolution Period, either party shall be entitled to file an action with a court of competent jurisdiction. If such dispute is resolved by the parties during the Resolution Period, the amount that the parties have specified as the amount to be paid by the Indemnitor, if any, as settlement for such dispute shall be conclusively deemed to be an obligation of such Indemnitor. (d) Notwithstanding any other provision of this Article 11, except as provided below in this subsection (d), the Indemnified GPF Parties, on the one hand, and the Indemnified CGL Parties, on the other hand, shall be entitled to indemnification hereunder with respect to the breach of a representation or warranty by CGL, on the one hand, or by any of the GPF Parties, on the other, only when the aggregate of all Damages to such indemnified Parties from all such breach of representations or warranties exceeds $150,000 (the “Deductible Amount”) and then only to the extent of such excess amount. The ~~Prime Rate in effect on~~ foregoing limitation with respect to the Deductible Amount shall not apply, however, to (a) any breach of the representations or warranties under Sections 4.1, 4.2, 4.3, 4.4, or 4.18, or the first ~~business day~~ sentence of Section 4.6, in the case of indemnification sought by an Indemnified CGL Party, or Sections 5.1, 5.2, 5.3, 5.4(a), or 5.17, or the first sentence of Section 5.6, in the case of indemnification sought by an Indemnified GPF Party, and, in each ~~calendar quarter~~ case, in the related provisions of the Closing Certificates, and (b) a breach of any representations or warranties of a Party to this Agreement that were made with an intent to mislead or defraud or with a reckless disregard of the accuracy thereof (collectively, the “Excepted Warranties”). In addition, in the case of the claim for Damages that may be made based on a breach of a representation or warranty as well as on any other item described in clauses (b) through (f) of Section 11.1 or in clauses (b) through (e) of Section 11.2, such limitations regarding the Deductible Amount, and the Indemnification Cap shall not apply to the ~~amount~~ extent that such claim is not based solely on an asserted breach of a representation or warranty. Other than in the case of the ~~unpaid obligation during~~ Excepted Warranties, the maximum limitation for claims arising out of or related to any matters set forth in clause (a) of the first sentence of Sections 11.1 and 11.2 shall be $10.0 million (the “Indemnification Cap”). In addition, the calculation of the Deductible Amount and the Sub-Deductible Amount shall include any Damages incurred by an Indemnified Party for which the Indemnified Party would have been entitled to claim indemnification under this Article 11 with respect to a breach of a representation or warranty but for such ~~calendar quarter~~claim being excluded as a result of the qualification of such representation or warranty by materiality or Material Adverse Effect. If the Damages for breaches of a Party’s representations or warranties incurred by the Indemnified GPF Parties, on the one hand, or the Indemnified CGL Parties, on the other hand, exceed the Deductible Amount, then such Indemnified GPF Parties, on the one hand, or the Indemnified CGL Parties, on the other hand, may only make claims based upon breaches of representations or warranties that, in each individual case, exceed $10,000 (the “Sub-Deductible Amount”); provided that the foregoing limitation shall not apply to Excepted Warranties. No claim may be made by an Indemnified Party for Damages arising with respect to breaches of Sections 4.9(c), (f) or (h), or by an Indemnified GPF Party for Damages arising with respect to breaches of Sections 5.9(c), (f) or (h), unless such Damages are related to claims or actions by a third-party.

Appears in 1 contract

Samples: Formation Agreement (Walker & Dunlop, Inc.)

Procedure for Claims. (a) ~~Any Person that~~ If an indemnified party desires to seek indemnification under ~~any part of this Article X~~ Section 8.1 or 8.2 (~~each~~such party, ~~an “~~the "Indemnified Party”) "), the Indemnified Party shall give notice to the indemnifying party (the "Indemnifying Party") by sending such party a claim notice (a “"Claim Notice~~”) to each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”~~") prior to ~~any~~ the applicable Expiration Date specified below~~. Such~~ , which notice shall ~~explain with specificity~~ describe in reasonable detail the nature of the ~~claim, the specific Article~~ claim and ~~section of this Agreement to which the claim relates and the parties known to be involved, and shall specify~~ the amount of the ~~estimated damages relating thereto~~Damages incurred by the Indemnified Party. If ~~the matter to which a claim relates shall not have been resolved as of the date of~~ (i) the Claim ~~Notice,~~ Notice is being sent under Section 8.1 and (ii) the ~~Indemnified Party shall estimate~~ Indemnification Escrow Funds have not been released in full pursuant to the amount of the claim in the Claim Notice, but shall also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated ClaimEscrow Agreement, the Indemnified Party shall also ~~give~~ send a ~~second~~ copy of the Claim Notice ~~(the “Liquidated Claim Notice”) within 60 days after the matter giving rise~~ to the ~~claim becomes finally resolved~~Escrow Agent, and such notice shall state that the ~~Second Claim Notice shall specify~~ claim is being made against the ~~amount of~~ Indemnification Escrow Funds only (i.e., not against the ~~claim~~Working Capital Adjustment Escrow Funds). ~~Each Indemnitor to which a Claim Notice is given~~ The Indemnifying Party shall respond to any ~~Indemnified Party that has given a~~ Claim Notice (a “"Claim Response”") within ~~60 days~~ 30 Business Days (the “"Response Period”") after ~~the later of (i)~~ the date that the Claim Notice is ~~given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim,~~ received by the ~~date on which the Liquidated Claim Notice is given~~Indemnifying Party. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements ~~hereunder~~set forth in Section 10.8, and any Claim Response shall specify whether or not the ~~Indemnitor giving the Claim Response disputes the~~ claim described in the related Claim ~~Notice~~Notice is disputed. If ~~any Indemnitor~~ the Buyer shall be the Indemnified Party with respect to a claim under Section 8.1, it shall first request payment of the related Damages from the Indemnification Escrow Funds under the Escrow Agreement, but only to the extent that the Indemnification Escrow Funds are then being held by the Escrow Agent and are not subject to other claims for indemnification in excess of the amount of such funds, and thereafter the Buyer shall be entitled to payment directly from the Seller. If the Indemnifying Party fails to give a Claim Response within the Response ~~Period, such Indemnitor shall be deemed~~ Period or does not to dispute the ~~claim described in the related Claim Notice. If any Indemnitor elects not to dispute a~~ claim described in a Claim Notice, ~~whether by failing to give a timely Claim Response or otherwise,~~ then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In the event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party may pursue whatever legal remedies may be available to recover the Damages as to which the Indemnified Party is seeking indemnification. (b) Notwithstanding any other part of this Section 8, (i) the Buyer shall be entitled to indemnification under Section 8.1 only when the aggregate of all Damages to the Buyer from all items as to which it would otherwise be entitled to indemnification under Section 8.1 exceeds $100,000 (the "Basket"), and then after the Basket has been exceeded Seller shall be responsible for ~~recovery~~ all Damages based thereon from the first dollar, without regard to the Basket; (ii) the Seller shall not be liable, in the aggregate, under Section 8.1 or otherwise to Buyer for an amount in excess of sixty percent (60%) of the ~~Damages claimed from any Indemnitor~~ Purchase Price for claims for which a Claim Notice is duly given to Seller in accordance with Section 10.8 on or before December 31, 2003, or forty percent (40%) of the ~~arbitration provisions~~ Purchase Price for claims for which a Claim Notice is duly given to Seller in accordance with Section 10.8 after December 31, 2003 (excluding any claims made under Section 3.3, which are subject to the procedures outlined in such Section, and not this Section 8); and (iii) the Buyer shall not be entitled to seek indemnification under Section 9.1 from the Seller for any breach of a representation or warranty, or breaches of a representation or warranty that arise from the same related facts, that involves Damages of less than $7,500 per breach or group of related breaches. However, notwithstanding anything to the company contained in this Section 8.3(b), (I) the Seller shall be liable to the full extent of any Damages suffered by Buyer based on a breach of Sections 4.4 (regarding Capitalization and Stock Ownership), 4.7 (regarding Taxes), 4.12 (regarding Environmental Matters) and 4.21 (regarding Defibrillator Liability); and (II) as a consequence, the claims made pursuant to such Sections 4.4, 4.7, 4.12 and 4.21 shall not be counted or aggregated for purposes of determining whether the Basket has been exceeded. (c) Except for any injunctive relief to which a Party may be entitled, the indemnification remedies provided in this Section 8 shall constitute the exclusive remedy of the Parties after the Closing for any claim in connection with this Agreement or any other Transaction Documents, including any claim for any Damages resulting from a breach by the Buyer, on one hand, or the Seller, on the other hand, of any representation, warranty, covenant or agreement contained in this Agreement, and neither any Party, any Affiliate of any Party, nor any other Person shall be entitled to make any claim or otherwise recover Damages from the other Party except as expressly provided under this Section 8, provided that the limitations of this Section 8.3(c) shall not apply to claims based on fraud. (d) The Indemnification Escrow Funds shall only be available to satisfy claims against Seller under Section 8.1 of this Agreement (but not claims against Seller under Section 3.3 of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate). The ~~Prime Rate~~ Working Capital Adjustment Escrow Funds shall only be available to satisfy claims against Seller under Section 3.3 of this Agreement and shall be disbursed in ~~effect on~~ full following the ~~first business day of each calendar quarter shall apply to the amount~~ final resolution of the ~~unpaid obligation during such calendar quarter~~Working Capital Adjustment in accordance with Section 3.3. The Escrow Agreement shall contain a statement to this effect.

Appears in 1 contract

Samples: Stock Purchase Agreement (Invivo Corp)

Procedure for Claims. (a) ~~Any Person~~ An Indemnified TeleSpectrum Party or an Indemnified Seller Party that desires to seek indemnification under any part of this ~~Article X~~ Section 10 (each, an “"Indemnified Party”") shall give notice (a “"Claim Notice”") to each party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor~~”) prior to any applicable Expiration Date specified below~~"). Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. Each Indemnitor to which or whom a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 30 days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the applicable Response Period the amount to which such Indemnified Party shall be entitled. ~~In the event of~~ If there shall be a dispute as to the amount or manner of indemnification under this ~~Article X~~Section 10, the Indemnitor and the Indemnified Party shall seek to resolve such dispute through negotiations and, if such dispute is not resolved within twenty days, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any ~~Indemnitor in accordance with the arbitration provisions of this Agreement~~Indemnitor. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to ~~the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter~~10%.

Appears in 1 contract

Samples: Exchange Agreement (Telespectrum Worldwide Inc)

Procedure for Claims. (a) Any Person ~~that~~ who desires to seek indemnification under any part of this ~~Article X~~ SECTION 11 (each, an “"Indemnified Party”") shall give written notice in reasonable detail (a “"Claim Notice”") to each ~~party~~ Party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor”") and the Escrow Agent prior to any applicable Expiration Date ~~specified below~~(as defined in SECTION 11.4). Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be ~~involved~~invoked, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 30 days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any ~~Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any~~ Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response in accordance with the terms hereof or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party ~~hereunder~~pursuant to this SECTION 11, such Indemnitor shall pay to such Indemnified Party ~~within 30 days after the last day of the Response Period~~ the amount to which such Indemnified Party shall be ~~entitled. In~~ entitled within 15 Business Days after the ~~event of a dispute as~~ day on which such Indemnitor became so obligated to the ~~amount or manner of indemnification under this Article X,~~ Indemnified Party. If the Indemnified Party ~~may pursue whatever legal remedies may~~ shall be ~~available for recovery~~ an Indemnified Buyer Party, it shall first seek payment of the Damages ~~claimed~~ to which it is entitled under this SECTION 11 from ~~any Indemnitor in accordance with~~ the ~~arbitration provisions~~ Escrow Funds, but only to the extent that Escrow Funds are then being held by the Escrow Agent and are not subject to other claims for indemnification; thereafter, if the amount of ~~this Agreement~~the Escrow Funds available for payment of Damages is less than the amount of Damages to which such Indemnified Buyer Party is entitled, such Indemnified Buyer Party shall seek indemnification directly from the Seller Parties. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime ~~Rate~~Rate plus 5%. (c) Notwithstanding anything in this Section 11 to the contrary (subject only to the first sentence of SECTION 11.3(G)), if an Indemnified Buyer Party seeks indemnification for Damages arising out of a breach by the Seller of SECTION 4.10, the Seller Parties shall be obligated to indemnify the Indemnified Buyer Party only after the Damages to the Indemnified Buyer Party exceed reserves for accounts receivable in an amount not to exceed $1,300,000. (d) The claims period for the Escrow Funds shall commence on the date hereof and shall continue for until the earlier to occur of (i) receipt by the Buyer of the audited consolidated financial statements of the Buyer for the period ending December 31, 2000 and (ii) March 31, 2000 (the "Claims Period"). Any Claim Notice shall be considered timely made for the purposes of this SECTION 11 if given prior to the termination of the Claims Period and in accordance with the notice requirements of SECTION 15. Any Claim Response shall be considered timely made for the purposes of this SECTION 11 if given prior to the termination of the Response Period and in accordance with the notice requirements of SECTION 15. (e) If, during the Response Period, an Indemnified Party receives a Claim Response from the Indemnitor, then for a period of 45 days (the "Resolution Period") after the Indemnified Party's receipt of such Claim Response, the Indemnified Party and the Indemnitor shall endeavor to resolve any dispute arising therefrom. If such dispute is resolved by the parties during the Resolution Period, the amount that the parties have specified as the amount to be paid by the Indemnitor, if any, as settlement for such dispute shall be conclusively deemed to be an obligation of such Indemnitor. If the parties are unable agree upon a resolution to such dispute prior to the expiration of the Resolution Period (or any extension thereto to which the Indemnitor and Indemnified Party agree in writing), the issue shall be presented to the American Arbitration Association in Philadelphia, Pennsylvania (the "AAA") for determination. The ~~Prime Rate~~ written determination of the AAA shall be binding upon the Parties. (f) If the Indemnified Party is an Indemnified Buyer Party and, pursuant to SECTION 11(B), such Indemnified Buyer Party is obligated to seek any portion of the funds to which such Indemnified Buyer Party is entitled from the Escrow Funds, then, within two Business Days from the date on which such Indemnified Buyer Party became entitled to such funds, the Indemnified Party and the Indemnitor shall provide joint written instructions to the Escrow Agent as to (i) the amount of funds, if any, to be dispersed from the Escrow Funds and (ii) instructions as to the manner in ~~effect~~ which such funds shall be dispersed by the Escrow Agent. (g) Notwithstanding any other provision of this SECTION 11, except as provided below in this SECTION 11.3(G), the Indemnified Buyer on the one hand, and the Indemnified Seller Parties on the other hand, shall be entitled to indemnification hereunder with respect to the breach of a representation or warranty by the Seller Parties or by the Buyer, respectively, only when the aggregate of all Damages to such Indemnified Parties from all such breach of representations or warranties exceeds $500,000 (the "Deductible Amount") and then only to the extent of such excess amount. The foregoing limitation with respect to the Deductible Amount shall not apply, however, to (a) any breach of the Seller Parties' representations or warranties under SECTIONS 4.1, 4.2, 4.6 (other than the third sentence of SECTION 4.6) or 4.13 and (b) a breach of any representations or warranties of a Party to this Agreement that were made with an intent to mislead or defraud or with a reckless disregard of the accuracy thereof. In addition, in the case of the Claim that may be made based on a breach of a representation or warranty as well as on any other item described in clauses (a) through (f) of the first ~~business day~~ sentence of ~~each calendar quarter~~ SECTION 11.1, such limitations regarding the Deductible Amount shall not apply to the ~~amount~~ extent that such Claim is not based solely on an asserted breach of a representation or warranty. Notwithstanding the ~~unpaid obligation during such calendar quarter~~foregoing, the maximum limitation for claims arising out of or related to any matters set forth in clause (a) shall be $25,000,000.

Appears in 1 contract

Samples: Asset Purchase Agreement (Verticalnet Inc)

Procedure for Claims. (a) ~~Any Person~~ An Indemnified Party that desires to seek indemnification under any part of this ~~Article X (each, an “Indemnified Party”)~~ Section 11 shall give notice (a “"Claim Notice”") to each party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor”") and if applicable, to the Escrow Agent, prior to any applicable Expiration Date specified below. Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates and the parties known to be involved,~~ and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 30 days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim ~~Notice, whether~~ Notice by ~~failing~~ notice to ~~give a timely Claim Response or otherwise~~such effect, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. ~~For the purposes of the immediately preceding sentence, an Indemnitor's failure~~ If any Indemnitor fails to ~~give a timely Claim Response shall not be deemed an election not~~ respond to ~~dispute~~ a Claim Notice ~~unless~~ within the above-specified 30-day period and the Indemnified Party institutes arbitration to recover the Damages for which it is indemnified hereunder, the Indemnitor shall ~~have given a second Claim Notice after expiration~~ pay the Indemnified Party, regardless of the ~~Response Period and~~outcome of the proceeding, ~~another 20 days after~~ an amount equal to twice the ~~date on which~~ total amount of any fees and expenses incurred by the Indemnified Party ~~shall have given~~ to institute such ~~second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period~~proceeding. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Claim Response Period the amount to which such Indemnified Party shall be entitled. In If the ~~event~~ Buyer shall be the Indemnified Party, it shall first request payment of the related Damages under the Escrow Agreement, but only to the extent that Escrow Funds are then being held by the Escrow Agent and are not subject to other claims for indemnification, and thereafter the Buyer shall seek indemnification directly from the Seller. If there shall be a dispute as to the amount or manner of indemnification under this ~~Article X~~Section 11, the Indemnified Party ~~may pursue whatever legal remedies may be available for recovery of~~ shall resolve the ~~Damages claimed from any Indemnitor~~ dispute in ~~accordance with~~ the ~~arbitration provisions of this Agreement~~manner set forth in Section 12. If any ~~Indemnitor~~ Indemnified Party fails to ~~pay~~ receive all or part of any indemnification obligation when due, then such ~~Indemnitor~~ Indemnified Party shall also be ~~obligated~~ entitled to ~~pay to~~ receive from the applicable ~~Indemnified Party~~ Indemnitor or, if applicable, the Escrow Agent, interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the ~~Prime~~ Default Rate~~. The Prime~~ , and the Default Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter. (c) Notwithstanding any other provision of this Section 11, (i) an Indemnified Party shall be entitled to indemnification hereunder only when the aggregate of all Damages to such Indemnified Party exceeds $100,000 (the "Deductible Amount") and then such Indemnified Party shall be entitled to indemnification for its Damages in excess of the Deductible Amount and (ii) no Indemnitor shall be liable under this Section 11 for any amount in excess of $4 million, except that any Damages based on a breach of representations and warranties with respect to tax matters shall not be counted against or subject to such maximum limitation. The limitations of this paragraph (c), however, shall not apply to (x) the Seller's representations and warranties in Section 4.4, (y) Damages arising out of common law fraud in connection with the Transactions or (z) any covenants or agreements to be performed by an Indemnitor after the Closing. In addition, the calculation of the Deductible Amount shall include any Damages incurred by an Indemnified Party for which the Indemnified Party would have been entitled to claim indemnification under this Section 10 with respect to a breach of representation or warranty but for such representation or warranty being qualified by materiality, the knowledge of a particular party or related exceptions. (d) The amount of Damages to which an Indemnified Party may be entitled under this Section 11 shall be reduced by (i) any insurance proceeds received by the Indemnified Party, and (ii) the deductible amount of any related insurance recovery under the terms of the applicable insurance policy. (e) If the existence of an obligation for the payment of money to a third party (other than fines or other payments to any governmental entity that relate to matters that affect the ongoing operation of the Business to which the fines or other payments relate) causes any representation or warranty of an Indemnitor in this Agreement to be untrue, then, if such Indemnitor satisfies such obligation to such third party in full, such Indemnitor shall not be required to indemnify any Indemnified Party for any Damages resulting from such breach of the representation or warranty. (f) If a claim under this Section 11 results in a tax benefit to the Indemnified Party, the Indemnitor shall be entitled to a credit against any Liability hereunder in any amount equal to the amount by which (i) the present value of the Federal and state income taxes of the Indemnified Party shall be reduced by reason of any reduction allowed the Indemnified Party for any payment, settlement or satisfaction of such claim, exceeds (ii) the present value of the Federal and state income taxes payable by the Indemnified Party by reason of any payment under this Section 11. (g) Any payment for indemnification under this Section 11 shall be deemed either an increase or decrease in the Purchase Price depending upon which of the parties is the respective Indemnified Party or Indemnitor. (h) Whenever an event (a "Possible Breach Event") occurs that is specifically covered by one of the representations and warranties contained in Article 4 or Article 5 (the "Specifically Applicable Warranty"), which Specifically Applicable Warranty contains a limitation on the liability such as a knowledge limitation, a threshold dollar amount, a materiality exception or the like (a "Warranty Limitation"), and such Possible Breach Event would not cause a breach of such Specifically Applicable Warranty as a result of the application of the Warranty Limitation, then if such Possible Breach Event would also cause the breach of another representation or warranty but for the application of this paragraph, then no breach shall be deemed to have occurred as the Warranty Limitation contained in the Specifically Applicable Warranty shall overcome the application of any other representation or warranty that might be applicable. By way of illustration but not by way of limitation, if, for instance, pending litigation relating to environmental compliance matters exists but is unknown to Seller and therefore would not constitute a breach of Section 4.15(a) by virtue of the Warranty Limitation (i.e. Seller's knowledge), then the existence of such pending litigation shall not be deemed to be a breach of any other provision of this Agreement, including the representation in Section 4.12 that there are no Liabilities (other than as listed in Section 4.12), or the representation in Section 4.5 that the financial statements fairly reflect the financial position and assets and liabilities of Diamond.

Appears in 1 contract

Samples: Stock Purchase Agreement (Pamarco Technologies Inc)

Procedure for Claims. ~~(a) Any Person that desires~~ An Indemnified Party wishing to ~~seek~~ assert a claim for indemnification under ~~any part of~~ this Article ~~X (each, an “Indemnified Party”)~~ VI shall ~~give~~ deliver to the Indemnifying Party a written notice (a “"Claim Notice”") which contains (i) a description and the amount (the "Claimed Amount") of any Damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to ~~each party responsible or alleged to be responsible for~~ indemnification ~~hereunder (an “Indemnitor”) prior to any applicable Expiration Date specified below. Such notice shall explain with specificity the nature~~ under this Article VI and a reasonable explanation of the ~~claim, the specific Article and section of this Agreement to which the claim relates and the parties known to be involved~~basis therefor, and ~~shall specify~~ (iii) a demand for payment in the amount of such Damages. The failure to notify the ~~estimated damages relating thereto~~Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to the Indemnified Party, except to the extent that the Indemnifying Party is prejudiced by the Indemnified Party's failure to give such notice. ~~If the matter to which~~ Within 30 days after delivery of a ~~claim relates shall not have been resolved as of the date of the~~ Claim Notice, the Indemnifying Party shall deliver to the Indemnified Party ~~shall estimate~~ a written response in which the ~~amount~~ Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the ~~claim~~ Claimed Amount (in which case such response shall be accompanied by a payment by the ~~Claim Notice~~Indemnifying Party to the Indemnified Party of the Claimed Amount, by certified check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the Claimed Amount (the "Agreed Amount") (in which case such response shall ~~also specify therein~~ be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by certified check or by wire transfer), or (III) contest that the ~~claim has not yet been liquidated (an “Unliquidated Claim”)~~Indemnified Party is entitled to receive any of the Claimed Amount. If ~~an Indemnified~~ the Indemnifying Party ~~gives a Claim Notice for an Unliquidated Claim~~in such response contests the payment of all or part of the Claimed Amount, the Indemnifying Party and the Indemnified Party shall ~~also give a second Claim Notice (the “Liquidated Claim Notice”)~~ use good faith efforts to resolve such dispute. If such dispute is not resolved within 60 days ~~after~~ following the ~~matter giving rise to~~ delivery by the ~~claim becomes finally resolved~~Indemnifying Party of such response, the Indemnifying Party and the ~~Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any~~ Indemnified Party ~~that has given~~ shall each have the right to submit such dispute to a ~~Claim Notice (a “Claim Response”) within 60 days (the “Response Period”) after the later~~ court of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given competent jurisdiction in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In the event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarterSection 11.12.

Appears in 1 contract

Samples: Stock Purchase and Sale Agreement (Spheris Leasing LLC)

Procedure for Claims. (a) Any Person ~~that~~ who desires to seek indemnification under any part of this ~~Article X~~ SECTION 9 (each, an “"Indemnified Party”") shall give written notice in reasonable detail (a “"Claim Notice”") to each ~~party~~ Party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor”") and in the case of an Indemnified party the Escrow Agent prior to any applicable Expiration Date ~~specified below~~(as defined in SECTION 9.4). Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be ~~involved~~invoked, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall be given in accordance with SECTION 12 and shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 30 days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim ~~Notice or Claim~~ Response shall be given in accordance with ~~the notice requirements hereunder,~~ SECTION 12 and ~~any Claim Response~~ shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response in accordance with the terms hereof or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party ~~hereunder~~pursuant to this SECTION 9, such Indemnitor shall pay to such Indemnified Party ~~within 30 days after the last day of the Response Period~~ the amount to which such Indemnified Party shall be ~~entitled. In~~ entitled within 15 Business Days after the ~~event of a dispute as~~ day on which such Indemnitor became so obligated to the ~~amount or manner of indemnification under this Article X,~~ Indemnified Party. If the Indemnified Party ~~may pursue whatever legal remedies may~~ shall be ~~available for recovery~~ an Indemnified Buyer Party, it shall first seek payment of the Damages ~~claimed~~ to which it is entitled under this SECTION 9 from ~~any Indemnitor in accordance with~~ the ~~arbitration provisions~~ Escrow Funds, but only to the extent that Escrow Funds are then being held by the Escrow Agent and are not subject to other claims for indemnification; thereafter, if the amount of ~~this Agreement~~the Escrow Funds available for payment of Damages is less than the amount of Damages to which such Indemnified Buyer Party is entitled, such Indemnified Buyer Party shall seek indemnification directly from Seller Parties. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime ~~Rate~~Rate plus 5%. (c) The claims period for the Escrow Funds shall commence on the date hereof and shall continue for one year thereafter (the "Claims Period"). Any Claim Notice shall be considered timely made for the purposes of this SECTION 9 if given prior to the termination of the Claims Period and in accordance with the notice requirements of SECTION 12. Any Claim Response shall be considered timely made for the purposes of this SECTION 9 if given prior to the termination of the Response Period and in accordance with the notice requirements of SECTION 12. (d) If, during the Response Period, an Indemnified Party receives a Claim Response from the Indemnitor, then for a period of 45 days (the "Resolution Period") after the Indemnified Party's receipt of such Claim Response, the Indemnified Party and the Indemnitor shall endeavor to resolve any dispute arising therefrom. If such dispute is resolved by the parties during the Resolution Period, the amount that the parties have specified as the amount to be paid by the Indemnitor, if any, as settlement for such dispute shall be conclusively deemed to be an obligation of such Indemnitor. If the parties are unable agree upon a resolution to such dispute prior to the expiration of the Resolution Period (or any extension thereto to which the Indemnitor and Indemnified Party agree in writing), the issue shall be presented to the American Arbitration Association in Pittsburgh, Pennsylvania (the "AAA") for determination. The ~~Prime Rate in effect~~ written determination of the AAA shall be binding upon the Parties. (e) If the Indemnified Party is an Indemnified Buyer Party and, pursuant to SECTION 9(B), such Indemnified Buyer Party is obligated to seek any portion of the funds to which such Indemnified Buyer Party is entitled from the Escrow Funds, then, within two Business Days from the date on which such Indemnified Buyer Party became entitled to such funds, the ~~first business day of each calendar quarter~~ Indemnified Party and the Indemnitor shall ~~apply~~ provide joint written instructions to the Escrow Agent as to (i) the amount of funds, if any, to be dispersed from the ~~unpaid obligation during~~ Escrow Funds and (ii) instructions as to the manner in which such ~~calendar quarter~~funds shall be dispersed by the Escrow Agent. (f) Notwithstanding any other provision of this SECTION 9, except as provided below in this PARAGRAPH (F), the Indemnified Buyer Parties shall be entitled to indemnification hereunder with respect to the breach of a representation or warranty herein by the Companies only when the aggregate of all Damages to such Indemnified Buyer Parties from all such breaches of representations or warranties exceeds $200,000 (the "Deductible Amount") and then only to the extent of such excess amount. The foregoing limitation with respect to the Deductible Amount shall not apply, however, to (a) any breach of any Company's representations or warranties under SECTIONS 4.10 or 4.18(C) as to the costs of any Patent filings necessary for any previously filed Patent included in the Purchased Assets that is determined to be invalid and (b) a breach of any Company's representations or warranties under this Agreement that were made with an intent to defraud. Notwithstanding the foregoing, the maximum dollar amount recoverable by the Buyer Indemnified Parties hereunder for claims arising out of or related to any Company's (x) breaches of its representations or warranties under SECTIONS 4.1, 4.2, 4.4 or 4.6(A)--as to title only shall be the Purchase Price; (y) breaches of any Company's representations or warranties under SECTIONS 4.13, 4.15--as to litigation and Environmental Conditions only or 4.18 shall be two-thirds of the Purchase Price; and (z) for breaches of any of the Companies' representations or warranties not listed in the foregoing clauses (x) and (y) shall be one-third of the Purchase Price.

Appears in 1 contract

Samples: Asset Purchase Agreement (Tetra Technologies Inc)

Procedure for Claims. (a) Any Person ~~that~~ who desires to seek indemnification under any part of this ~~Article X~~ Section 11 (each, an “Indemnified Party”) shall give written notice in reasonable detail (a “Claim Notice”) to each ~~party~~ Party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”~~) prior to any applicable Expiration Date specified below~~). Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, then the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 30 days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim ~~Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim~~ Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, then such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response in accordance with the terms hereof or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party ~~hereunder~~pursuant to this Section 11, then such Indemnitor shall pay to such Indemnified Party ~~within 30 days after the last day of the Response Period~~ the amount to which such Indemnified Party shall be entitled within 15 Business Days after the day on which such Indemnitor became so obligated to the Indemnified Party. If the Indemnified Party shall be an Indemnified Buyer Party, it shall first offset the amount of the Damages to which it is entitled under this Section 11 from the promissory note issued to the Seller on the Closing Date, but only to the extent the original principal amount of such promissory note is sufficient to satisfy such Damages and has not been previously offset by other claims for indemnification. Thereafter, if the remaining principal amount of the promissory note is less than the amount of Damages to which such Indemnified Buyer Party is entitled, such Indemnified Buyer Party shall be entitled to indemnification directly from the Seller Parties or any of them. In addition, if the ~~event of a dispute as to the amount or manner of indemnification under this Article X~~Indemnified Party is an Indemnified Buyer Party, the Indemnified Buyer Party ~~may pursue whatever legal remedies may~~ shall be ~~available for recovery~~ entitled, at its sole discretion, to reduce the Earn-Out Consideration by the amount of the Damages ~~claimed from any Indemnitor in accordance with the arbitration provisions of~~ to which it is entitled under this ~~Agreement~~Section 11. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to 10%. (c) If, during the ~~Prime Rate~~Response Period, an Indemnified Party receives a Claim Response from the Indemnitor, then for a period of 45 days (the “Resolution Period”) after the Indemnified Party’s receipt of such Claim Response, the Indemnified Party and the Indemnitor shall endeavor to resolve any dispute arising therefrom. If such dispute is resolved by the Parties during the Resolution Period, the amount that the Parties have specified as the amount to be paid by the Indemnitor, if any, as settlement for such dispute shall be conclusively deemed to be an obligation of such Indemnitor. If the Parties are unable to agree upon a resolution to such dispute prior to the expiration of the Resolution Period (or any extension thereto to which the Indemnitor and Indemnified Party agree in writing), the issue shall be finally settled by arbitration conducted by an arbitrator mutually agreed to by the Parties. The ~~Prime Rate~~ arbitrator shall conduct the arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association (as modified by this Agreement) in ~~effect~~ Pittsburgh, Pennsylvania, but the matter shall not be submitted to the American Arbitration Association and the arbitrator need not be a member of the American Arbitration Association. The decision of the arbitrator shall be binding upon the Parties. The arbitrator shall apply the governing Law specified in Section 16 of this Agreement and shall have the power to rule on its competence and on the ~~first business day~~ validity of ~~each calendar quarter shall apply~~ this Agreement as submitted for arbitration. The Parties will provide to the ~~amount~~ arbitrator all information pertaining to the dispute that the arbitrator may request, provided, that all information supplied by any Party shall be deemed to be confidential information and the Parties and the arbitrator shall use commercially reasonable efforts to protect such information from disclosure to any Person not related to the dispute. Judgment upon any award rendered may be entered in any court having jurisdiction. The Parties and the arbitrator will use their best efforts to cause the dispute to be resolved within three months after initiation of the ~~unpaid obligation during such calendar quarter~~arbitrator selection process. The arbitrator shall be required to state in writing the reasoning on which the award rests.

Appears in 1 contract

Samples: Asset Purchase Agreement (World Health Alternatives Inc)

Procedure for Claims. (a) Any Person ~~that~~ who desires to seek indemnification under any part of this Article X 8 (each, an “Indemnified Party”) shall give written notice in reasonable detail (a “Claim Notice”) to each ~~party~~ Party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”~~) prior to any applicable Expiration Date specified below~~). Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ indemnification claim ~~relates~~ and the parties known to be ~~involved~~invoked, and shall specify the amount thereof, provided that the amount specified in any Claim Notice with respect to the breach of any representation or warranty must exceed $25,000 in order for the claim to be valid and count towards the Deductible Amount. The Indemnified Party shall deliver the Claim Notice as promptly as practicable after the Indemnified Party first learns of the ~~estimated damages relating thereto~~underlying claim or, in the case of an Action, promptly following institution of the Action, as set forth in Section 8.5. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to ~~any~~ each Indemnified Party that has given a such Claim Notice (a “Claim Response”) within 60 30 days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim ~~Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim~~ Response shall specify whether or not the Indemnitor giving the Claim Response disputes the validity or amount of the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If Notwithstanding anything herein to the contrary, failure by an Indemnified Party to provide a Claim Notice within the time periods specified in this Section 8.3(a) shall not relieve any Indemnitor ~~elects not~~ of its obligations under Section 8.1 or 8.2, as applicable, except to ~~dispute~~ the extent that such failure has a ~~claim described in~~ material adverse impact on the ability of the Indemnitor to defend such claim. (b) If, during the Response Period, an Indemnified Party receives a Claim ~~Notice, whether by failing to give a timely Claim~~ Response ~~or otherwise~~from the Indemnitor, then for a period of 45 days (the “Resolution Period”) after the Indemnified Party’s receipt of such Claim Response, the Indemnified Party and the Indemnitor shall endeavor to resolve any dispute arising therefrom. In the event that the parties fail to reach a resolution during the Resolution Period, either party shall be entitled to file an action with a court of competent jurisdiction. If such dispute is resolved by the parties during the Resolution Period, the amount of that the parties have specified as the amount to be paid by the Indemnitor, if any, as settlement for such ~~claim~~ dispute shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (bc) If Notwithstanding any ~~Indemnitor shall be obligated to indemnify an~~ other provision of this Article 8, except as provided below in this subsection (c), no Indemnified Buyer Party ~~hereunder, such Indemnitor shall pay to such~~ or Indemnified ~~Party within 30 days after the last day of the Response Period the amount to which such Indemnified~~ Seller Party shall be ~~entitled~~entitled to indemnification hereunder pursuant to Section 8.1(b)(i) or Section 8.2(a) unless the aggregate of all Damages to the Indemnified Buyer Parties or Indemnified Seller Parties, as applicable, thereunder exceeds $200,000 (the “Deductible Amount”) and then only to the extent the aggregate amount of all Damages exceeds $100,000; provided, however, that the Deductible Amount shall not apply to (i) any breach of any representations or warranties that are finally determined by a court of competent jurisdiction (with no right to further appeal) to have been fraudulently made by Seller or Buyer, as applicable, and (ii) any breach of the representations contained in Sections 3.2(a), (c) (but only with respect to CPAM's rights in, to and under the CPAM CLO Documents), (m) and (p) and Sections 4.1, 4.2 and 4.3. Other than (x) in the case of a breach of any such representations or warranties that are finally determined by a court of competent jurisdiction (with no right to further appeal) to have been fraudulently made by a Seller or Buyer, as applicable, and (y) any breach of the representations contained in Section 3.1, Sections 3.2(a), (b), (c) (but only with respect to CPAM's rights in, to and under the CPAM CLO Documents), (e), (m) and (p) and Sections 4.1, 4.2 and 4.3, the maximum amount payable for all claims arising out of or related to breaches by the Seller or the Buyer, as applicable, (in the aggregate) pursuant to Section 8.1(b)(i) or Section 8.2(a) shall be $2,500,000 (the “Indemnification Cap”). In the ~~event~~ case of a ~~dispute~~ breach of any of the representations contained in Section 3.1(c) or Section 3.2(b), the maximum amount payable for all claims arising out of or related to breaches by the Seller pursuant to Section 8.1(a)(i) or (b)(i), as the case may be, as of any date shall be the Purchase Price less an amount equal to 70% of all collateral management fees and similar fees paid to or received by CPAM under any CPAM Collateral Management Agreement or CPAM Indenture from and after January 1, 2011 to and including such date. The maximum aggregate amount payable for all claims arising (A) pursuant to Section 8.1(b)(i) with respect to breaches of the representations contained in Section 3.2(e) and (B) pursuant to Section 8.1(b)(v) shall be (w) from and after the Closing Date to the ~~amount or manner~~ first anniversary of ~~indemnification under this Article X~~the Closing Date, $5,000,000, (x) from and after the first anniversary of the Closing Date to the second anniversary of the Closing Date, $2,500,000, (y) from and after the second anniversary of the Closing Date to the third anniversary of the Closing Date, $1,000,000 and (z) thereafter, zero. Notwithstanding the foregoing, the ~~Indemnified Party may pursue whatever legal remedies may be available~~ maximum amount payable in the aggregate for ~~recovery~~ claims arising out of or related to all breaches by the Seller or the Buyer, as applicable, (in the aggregate) pursuant to Section 8.1(a)(i), Section 8.1(b)(i) or Section 8.2(a), (2) the matters disclosed on Schedules 3.2(f) and 3.2(p) of the ~~Damages claimed from any Indemnitor in accordance with~~ Seller’s Disclosure Letter, and (3) Taxes allocated to Pre-closing Periods pursuant to Section 5.9(a)(ii), shall be the ~~arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to~~ Purchase Price (the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter"Purchase Price Cap").

Appears in 1 contract

Samples: Purchase Agreement (Resource Capital Corp.)

Appears in 1 contract

Samples: Stock Purchase Agreement (Heisley Michael E Et Al)

Procedure for Claims. (~~a) Any Person that desires to seek~~ i A party seeking indemnification under any part of ~~this Article X~~ Section 10.1 or Section 11 (~~each, an “Indemnified Party”~~the "INDEMNIFIED PARTY") shall ~~give notice~~ promptly notify in writing (a ~~“Claim Notice”~~"CLAIM NOTICE") the other party (the "INDEMNIFYING PARTY") of its desire to ~~each party responsible or alleged~~ seek indemnification (including without limitation items that would give rise to ~~be responsible for~~ a right to indemnification ~~hereunder (an “Indemnitor”) prior to any applicable Expiration Date specified below~~if they were not below the Threshold Amount). Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. ~~If the matter to which a claim relates~~ The Indemnified Party shall not ~~have been resolved as of the date of the~~ be entitled to give any Claim Notice, or to indemnification, pursuant to Section 10.1(a)(i) for any Damage less than U.S. $10,000 in any one instance (and any such Damage shall not be included in the Threshold Amount). The Indemnified Party shall as soon as practicable thereafter provide to the Indemnifying Party all information and documentation necessary to support and verify the right asserted, and the Indemnifying Party shall be given access to all personnel, properties, books and records that the Indemnifying Party reasonably determine to be related thereto. The Indemnifying Party shall respond to the Indemnified Party ~~shall estimate the amount of the claim in the Claim Notice, but shall also specify therein that the claim has not yet been liquidated~~ (~~an “Unliquidated Claim”). If an Indemnified Party gives~~ a ~~Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”~~"CLAIM RESPONSE") within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 45 days (the ~~“Response Period”~~"RESPONSE PERIOD") after ~~the later of (i)~~ the date that the ~~Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated~~ Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements ~~hereunder~~under this Agreement, and any Claim Response shall specify whether ~~or not~~ the ~~Indemnitor giving the Claim Response~~ Indemnifying Party disputes the claim ~~described~~ in the Claim Notice. If ~~any Indemnitor~~ the Indemnifying Party fails to give a Claim Response within the Response Period, ~~such Indemnitor~~ the Indemnified Party shall be deemed not to dispute the claim described in the ~~related~~ Claim Notice. If ~~any Indemnitor~~ the Indemnifying Party elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such ~~claim~~ obligation shall be conclusively deemed to be an obligation of ~~such Indemnitor. For~~ the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such periodIndemnifying Party. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In the event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter.

Appears in 1 contract

Samples: Stock Purchase Agreement (Day International Group Inc)

Procedure for Claims. ~~(a) Any~~ Person that desires to seek indemnification under any part of this ~~Article X~~ Section 11 (each, an “"Indemnified Party”") shall give notice (a “"Claim Notice”") to each party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor”") prior to any applicable Expiration Date specified below. Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be ~~involved~~invoked, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 20 days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period ~~and,~~ and another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a ~~Claim~~ Response Notice within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In the event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter.

Appears in 1 contract

Samples: Merger Agreement (Verticalnet Inc)

Procedure for Claims. ~~(a)~~ Any Indemnified Person ~~that~~ who desires to seek indemnification under any part of this ~~Article X (each, an “Indemnified Party”)~~ Section 4 shall give written notice in accordance with Section 4.3.10 in reasonable detail (a “"Claim Notice”") to each party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor”") ~~prior~~ and to ~~any applicable Expiration Date specified below~~Buyer's corporate counsel. Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified ~~Party~~ Person shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 sixty (60) days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 thirty (30) days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any ~~Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any~~ Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response in accordance with the terms hereof or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In the event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter.

Appears in 1 contract

Samples: Share Exchange Agreement (Pacific Technology Inc)

Procedure for Claims. (a) ~~Any Person that desires to seek indemnification under~~ Promptly, but in any ~~part~~ event within 10 days after obtaining knowledge of ~~this Article X (each~~any claim or demand which may give rise to, ~~an “Indemnified Party”) shall~~ or could reasonably give ~~notice (~~rise to, a ~~“Claim Notice”) to each party responsible or alleged to be responsible~~ claim for indemnification hereunder (an ~~“Indemnitor”) prior to any applicable Expiration Date specified below. Such notice shall explain with specificity the nature of the claim~~"Indemnification Claim"), the ~~specific Article and section~~ Purchaser affected by such claim shall give written notice to the Company of ~~this Agreement to which the claim relates and the parties known to be involved, and shall specify the amount~~ such Indemnification Claim ("Notice of the estimated damages relating thereto. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but shall also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”"). ~~If an Indemnified Party gives a~~ A Notice of Claim ~~Notice for an Unliquidated Claim, the Indemnified Party~~ shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first be given with respect to ~~an Unliquidated Claim~~all Indemnification Claims; provided, however, that the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Notice of Claim ~~Response~~ to the Company shall not relieve the Company from any liability that it may have to the Purchaser Indemnified Parties hereunder to the extent that the Company is not prejudiced by such failure. The Notice of Claim shall set forth the amount (or a reasonable estimate) of the loss, damage or expense suffered, or which may be ~~deemed an election not to dispute a Claim Notice unless~~ suffered, by the Purchaser Indemnified Party ~~shall have given~~ as a ~~second~~ result of such Indemnification Claim ~~Notice after expiration~~ and the aggregate amount of all Indemnification Claims to date and a brief description of the ~~Response Period and~~facts giving rise to such Indemnification Claim. Each Purchaser shall furnish to the Company such information (in reasonable detail) as such Purchaser may have with respect to such Indemnification Claim (including copies of any summons, ~~another 20 days after~~ complaint or other pleading which may have been served on it and any written claim, demand, invoice, billing or other document evidencing or asserting the ~~date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period~~same). (b) If the claim or demand set forth in the Notice of Claim is a claim or demand asserted by a third party (a "Third Party Claim"), the Company shall have fifteen days (or such shorter period (but not less than ten days) if any ~~Indemnitor~~ answer or other response or filing with respect to the pleadings served by the third party is required prior to the fifteenth day) after the date of receipt by the Company of the Notice of Claim (the "Notice Date") to notify the Purchasers in writing of the election by the Company to defend the Third Party Claim on behalf of the Purchaser Indemnified Parties. (c) If the Company elects to defend a Third Party Claim on behalf of the Purchaser Indemnified Parties, each Purchaser shall ~~be obligated~~ make available to ~~indemnify an Indemnified~~ the Company and its agents and representatives all records and other materials in such Purchaser's possession which are reasonably required in the defense of the Third Party ~~hereunder, such Indemnitor~~ Claim and the Company shall pay ~~to such Indemnified Party within 30 days after~~ any expenses payable in connection with the ~~last day~~ defense of the ~~Response Period~~ Third Party Claim as they are incurred (whether incurred by the ~~amount to which such Indemnified Party shall be entitled. In~~ Purchasers or the ~~event~~ Company). (d) If the Company has assumed control of ~~a dispute as to~~ the ~~amount or manner of indemnification under this Article X~~defense, the ~~Indemnified~~ Company may contest or settle the Third Party Claim on such terms as the Company may ~~pursue whatever legal remedies may be available for recovery~~ choose, provided, however, that the Company will not have the right, without the prior written consent of the ~~Damages claimed~~ Purchaser affected by such claim, to settle any such claim if such settlement (i) arises from ~~any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all~~ or is part of any ~~indemnification obligation when due~~criminal action, ~~then such Indemnitor Party shall also be obligated~~ suit or proceeding (ii) contains a stipulation to, confession of judgment with respect to, or admission or acknowledgment of, any liability or wrongdoing on the part of any Purchaser Indemnified Party, (iii) relates to ~~pay~~ any foreign federal, state or local tax matters, (iv) provides for injunctive relief, or other relief other than damages, which is binding on any Purchaser Indemnified Party, (v) does not fully release all Purchaser Indemnified Parties with respect to the ~~applicable~~ relevant Third Party Claim or (vi) has any res judicata or collateral estoppel effect that could be adverse to any Purchaser Indemnified Party. (e) If the Company elects to defend a Third Party Claim, the Purchaser Indemnified Parties shall have the right to participate in the defense of the Third Party Claim, at the Purchaser Indemnified Parties' expense (and without the right to indemnification for such expense under this Agreement); provided, however, that the reasonable fees and expenses of counsel retained by the Purchaser Indemnified Parties shall be at the expense of the Company if (A) the use of the counsel chosen by the Company to represent the Purchaser Indemnified Parties would present such counsel with a conflict of interest; (B) the parties to such proceeding include both Purchaser Indemnified Parties and the Company and there may be legal defenses available to Purchaser Indemnified Parties which are different from or additional to those available to the Company; (C) within ten days after being advised by the Company of the identity of counsel to be retained to represent the Purchaser Indemnified Parties, the Purchaser Indemnified Party ~~interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal~~ affected by such claim shall have objected to the ~~Prime Rate. The Prime Rate~~ retention of such counsel for valid reasons (which shall be stated in ~~effect on the first business day of each calendar quarter shall apply~~ a written notice to the ~~amount~~ Company), and the Company shall not have retained different counsel reasonably satisfactory to such Purchaser Indemnified Party; or (iv) the Company shall authorize the Purchaser Indemnified Parties to retain separate counsel at the expense of the ~~unpaid~~ Company. (f) If the Company elects to defend a Third Party Claim, and does not defend a Third Party Claim in good faith, the Purchaser Indemnified Parties shall have the right, in addition to any other right or remedy it may have hereunder, at the sole and exclusive expense of the Company, to defend such Third Party Claim; provided, however, that such expenses shall be payable by the Company only if and when such Third Party Claim becomes payable. (g) The Purchasers shall cooperate with the Company in the defense of Third Party Claims. Subject to the foregoing, (i) the Purchaser Indemnified Parties shall not have any obligation ~~during such calendar quarter~~to participate in the defense of or to defend any Third Party Claim and (ii) the Purchaser Indemnified Parties' defense of or participation in the defense of any Third Party Claim shall not in any way diminish or lessen the right to indemnification as provided in this Section 7.

Appears in 1 contract

Samples: Common Stock Purchase Agreement (Diametrics Medical Inc)

Appears in 1 contract

Samples: Stock Exchange Agreement (Safeguard Scientifics Inc Et Al)

Procedure for Claims. (a) Any Person that desires to seek indemnification under any ~~part~~ provision of this Article X IX or any other provision of this Agreement providing for indemnification (other than Article VIII) (each, an “"Indemnified Party”") shall give notice (a “"Claim Notice”") to each party ------------------ ------------ responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor”") prior to any applicable Expiration Date specified below. ---------- Such ~~notice~~ Claim Notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party ------------------ gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 ----------------------- sixty (60) days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. Any failure to give a Claim Notice in a timely manner pursuant to this Section 9.4(a) shall not limit the obligation of the Indemnitor under this Article IX, except to the extent such Indemnitor is prejudiced thereby and except as otherwise provided in Section 9.7. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 thirty (30) days (the “"Response -------------- -------- Period”") after the later of (ia) the date that the Claim Notice is given or ------ (iib) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice, Liquidated Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice, if applicable, or Liquidated Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice, if applicable, or Liquidated Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. ~~For~~ If the ~~purposes of~~ Indemnitor notifies the ~~immediately preceding sentence, an Indemnitor's failure to give a timely~~ Indemnified Party in the Claim Response ~~shall not be deemed an election not to dispute a Claim Notice unless~~ that it disputes the claim made by the Indemnified Party, then the Indemnitor and the Indemnified Party shall ~~have given~~ endeavor in good faith for a ~~second Claim Notice after expiration~~ period of thirty (30) days to settle and compromise such claim, and if unable to agree on any settlement or compromise, such claim for indemnification shall be settled by mediation and arbitration in accordance with the ~~Response Period and~~provisions of Section 10.1 of this Agreement, ~~another 20 days after the date on which the Indemnified Party~~ and any Loss established by reason of such settlement, compromise or arbitration shall ~~have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period~~be deemed to be finally determined. (b) ~~If any Indemnitor~~ Any Loss that is finally determined in the manner set forth in Section 9.4(a) shall be ~~obligated~~ paid by the Indemnitor to ~~indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such~~ the Indemnified Party within 30 thirty (30) days after (a) the last day of the Response Period or (b) the ~~amount to~~ date on which such ~~Indemnified Party~~ settlement, compromise or arbitration described in the last sentence of Section 9.4(a) shall have been deemed to be ~~entitled. In~~ finally determined, as the ~~event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party~~ case may ~~pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement~~be. If any Indemnitor fails to pay an Indemnified Party all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to ~~the applicable~~ such Indemnified Party interest on the unpaid amount for each day during which the obligation ~~remains unpaid~~ is delinquent at an annual rate equal to the Prime ~~Rate. The~~ Rate plus two percent (2%) per annum, and the Prime Rate in effect on the first (1st) business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter.

Appears in 1 contract

Samples: u.s. Wireless Alliance Agreement (Bell Atlantic Corp)

Procedure for Claims. 10.4.1. A party entitled to indemnification (~~a) Any Person that desires to seek indemnification under any part of this Article X (each,~~ an “Indemnified Party”) shall give the party required to provide such indemnification (the “Indemnifying Party”) notice of any matter which an Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement (a “Claim Notice”), within thirty (30) to each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) prior to any applicable Expiration Date specified below. Such notice shall explain with specificity the nature days of ~~the claim~~such determination, ~~the specific Article and section of this Agreement to which the claim relates and the parties known to be involved, and shall specify~~ stating the amount of the ~~estimated damages relating thereto~~Claim, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. Any failure to submit any such Claim Notice in a timely manner to the Indemnifying Party shall not relieve the Indemnifying Party of any liability hereunder, except to the extent the Indemnifying Party is actually materially prejudiced by such failure. 10.4.2. If the ~~matter to which a claim relates shall not have been resolved as of the date~~ Indemnifying Party, within thirty business days after receipt of the Claim Notice, does not give written notice to the Indemnified Party announcing its intent to contest such Claim, the Claim shall ~~estimate~~ be deemed accepted and the amount of the ~~claim~~ Claim shall be deemed a valid Claim, and the Indemnifying Party shall, within twenty business days after expiration of the prior notice period, deliver to the Indemnified Party the amount of the Claims set forth in the Claim Notice. In the event, ~~but shall also specify therein~~ however, that the ~~claim has not yet been liquidated~~ Indemnifying Party contests the assertion of a Claim by giving written notice to the Indemnified Party within the thirty business day period, then the parties shall act in good faith to reach agreement regarding such Claim. 10.4.3. The obligations and liabilities of an Indemnifying Party under this Article 10 with respect to losses arising from Claims of any third party which are subject to the indemnification provided for in this Article 10 (an “~~Unliquidated Claim~~Third Party Claims”~~). If~~ ) shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party ~~gives a Claim Notice for an Unliquidated~~ shall receive notice of any Third Party Claim, the Indemnified Party shall ~~also~~ give ~~a second~~ the Indemnifying Party notice of such Third Party Claim ~~Notice (~~within thirty days of the ~~“Liquidated Claim Notice”) within 60 days after~~ receipt by the ~~matter giving rise~~ Indemnified Party of such notice; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the ~~claim becomes finally resolved,~~ extent the Indemnifying Party is actually materially prejudiced by such failure and shall not relieve the ~~Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond~~ Indemnifying Party from any other obligation or liability that it may have to any Indemnified Party otherwise than under this Article 10. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any losses arising from Claims that ~~has given a~~ may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim ~~Notice (a “Claim Response”)~~ at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within 60 five days (of the ~~“Response Period”) after~~ receipt of such notice from the ~~later of~~ Indemnified Party; provided, however, that if (i) there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the ~~date that~~ judgment of the ~~Claim Notice is given~~ Indemnified Party for the same counsel to represent both the Indemnified Party and the Indemnifying Party, or (ii) if there is a reasonable probability that such Third Party Claim ~~Notice is first given with respect~~ may have a Material Adverse Effect on the Indemnified Party other than as a result of money damages that are reasonably expected to ~~an Unliquidated Claim,~~ be satisfied out of the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwiseIndemnification Amount, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall ~~have given~~ be entitled to participate in the defense of such Third Party Claim, at its sole cost and expense and through counsel of its own choice; and provided further, that (x) if such Third Party Claim involves a ~~second Claim Notice after expiration~~ claim for an injunction against any business or operations of the ~~Response Period and~~Indemnified Party, ~~another 20 days after~~ (y) if such Third Party Claim involves a criminal proceeding, action, indictment, allegation or investigation, or (z) if the ~~date on which~~ appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such Third Party Claim, then the Indemnified Party shall ~~have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall~~ be ~~obligated~~ entitled to ~~indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day~~ maintain control of the ~~Response Period~~ defense of such Third Party Claim with counsel of its own choice (and the ~~amount to which such Indemnified~~ Indemnifying Party shall be ~~entitled~~entitled to participate in the defense of such Third Party Claim, at its sole cost and expense and through counsel of its own choice). In the event ~~of a dispute~~ the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as ~~to the amount or manner of indemnification under this Article X~~provided above, the Indemnified Party ~~may pursue whatever legal remedies~~ shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be ~~available for recovery~~ settled by the Indemnifying Party without the written consent of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarterParty.

Appears in 1 contract

Samples: Asset Acquisition Agreement (Supergen Inc)

Procedure for Claims. (a) Any Person ~~that~~ who desires to seek indemnification under any part of this ~~Article X~~ Section 9 (each, an “"Indemnified Party”") shall give written notice in reasonable detail (a “"Claim Notice”") to each party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor”") prior to any applicable Expiration ~~Date specified below~~Date. Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount of Losses thereof to the ~~estimated damages relating thereto~~extent then known. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the ~~claim~~ Losses in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice ~~(the “Liquidated Claim Notice”)~~ within ~~60 days~~ a reasonable period after the matter giving rise to the claim becomes finally ~~resolved,~~ resolved (the "Liquidated Claim Notice") and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such periodLosses. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party ~~hereunder~~pursuant to this Section 9, such Indemnitor shall pay to such Indemnified Party ~~within 30 days after the last day of the Response Period~~ the amount to which such Indemnified Party shall be ~~entitled. In~~ entitled within fifteen (15) days after the ~~event of a dispute as~~ day on which such Indemnitor became so obligated to the ~~amount or manner~~ Indemnified Party. (c) Any Claim Notice shall be considered timely made for the purposes of ~~indemnification under~~ this ~~Article X,~~ Section 9 if given prior to the ~~Indemnified Party may pursue whatever legal remedies may be available for recovery~~ termination of the ~~Damages claimed from any Indemnitor~~ applicable Expiration Date and in accordance with the ~~arbitration provisions~~ notice requirements of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarterSection 11.

Appears in 1 contract

Samples: Stock Purchase Agreement (Wilmar Industries Inc)

Procedure for Claims. (a) ~~Any Person~~ An Indemnified Purchaser Party or Indemnified Seller Party, as the case may be, that desires to seek indemnification under any part of this ~~Article X~~ Section 9 (~~each, an~~ the “Indemnified Party”) shall give notice (a “Claim Notice”) to each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) prior to any applicable Expiration Date specified below. Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim,~~ claim (the ~~specific Article and section of this Agreement to which the claim relates~~ “Indemnification Claim”) and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto. If the matter to which~~ thereof or a ~~claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall~~ good faith estimate the amount of the claim in the Claim Notice, but shall also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claimthereof. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 20 days (the “Response Period”) after the ~~later of (i) the~~ date that the ~~Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated~~ Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's A failure to give a timely ~~Claim Response~~ notice as provided in this Section 9.3 shall not ~~be deemed an election not~~ affect the rights or obligations of any party except and only to ~~dispute~~ the extent that, as a ~~Claim Notice unless the Indemnified Party shall have given~~ result of such failure, any party entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise directly and materially damaged as a ~~second Claim Notice after expiration~~ result of ~~the Response Period and, another 20 days after the date on which the Indemnified Party shall have given~~ such ~~second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period~~failure. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay the amount of the Damages (as determined pursuant to this Section 9.3(b)) to such Indemnified Party within 30 days ~~after~~ of: (i) the ~~last day of~~ Indemnitor and the ~~Response Period~~ Indemnified Party agreeing to the amount to of such Damage payable by the Indemnitor; or (ii) a decision, by a governmental authority from which ~~such Indemnified Party~~ no appeal lies or in respect of which all appeal rights have been exhausted and all time periods for appeal have expired without appeals having been taken, that the Indemnitor is liable for the amount of Damages. (c) If there shall be ~~entitled. In the event of~~ a dispute as to the amount or manner of indemnification under this ~~Article X~~Section 9, the Indemnified Party may pursue whatever legal remedies may be available for recovery of ~~the~~ all Damages claimed from any Indemnitor. All amounts to be paid by an Indemnitor pursuant to this Section 9 shall bear interest at the rate set forth in ~~accordance with~~ Section 9.7(c) below from the ~~arbitration provisions~~ date that the Indemnified Party disbursed funds, suffered damages or loss or incurred a loss, liability or expense in respect of Damages for which the Indemnitor is liable to make payment pursuant to this ~~Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due~~Section 9, ~~then such Indemnitor Party shall also be obligated to pay~~ to the ~~applicable Indemnified Party interest on~~ date of payment by the ~~unpaid amount for each day during which the obligation remains unpaid at an annual rate equal~~ Indemnitor to the ~~Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter~~Indemnified Party.

Appears in 1 contract

Samples: Asset Purchase Agreement (Handleman Co /Mi/)

Procedure for Claims. ~~(a)~~ Any Indemnified Person ~~that~~ who desires to seek indemnification under any part of this ~~Article X (each, an “Indemnified Party”)~~ Section 4 shall give written notice in accordance with Section 4.3.9 in reasonable detail (a “"Claim Notice”") to each party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor”") ~~prior~~ and to ~~any applicable Expiration Date specified below~~Buyer's then current corporate counsel. Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified ~~Party~~ Person shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 sixty (60) days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 thirty (30) days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any ~~Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any~~ Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response in accordance with the terms hereof or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In the event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter.

Appears in 1 contract

Samples: Stock Exchange Agreement (Free DA Connection Systems, Inc.)

Procedure for Claims. ~~(a)~~ Any Person that desires to seek indemnification under any ~~part~~ provision of this ~~Article X~~ Section 10 or any other provision of this Agreement providing for indemnification (each, an “"Indemnified Party”") shall give notice (a “"Claim Notice”") to each party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor”") prior to any applicable Expiration Date specified below. Such ~~notice~~ Claim Notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 sixty (60) days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Any failure to give a Claim Notice in a timely manner pursuant to this Section 10.5(a) shall not limit the obligation of the Indemnitor under this Section 10, except to the extent such Indemnitor is prejudiced thereby and except as otherwise provided in Section 10.8. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 thirty (30) days (the “"Response Period”") after the later of (ia) the date that the Claim Notice is given or (iib) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. ~~For~~ If the ~~purposes of~~ Indemnitor notifies the ~~immediately preceding sentence, an Indemnitor's failure to give a timely~~ Indemnified Party in the Claim Response ~~shall not be deemed an election not to dispute a Claim Notice unless~~ that it disputes the claim made by the Indemnified Party, then the Indemnitor and the Indemnified Party shall ~~have given~~ endeavor in good faith for a ~~second Claim Notice after expiration~~ period of ~~the Response Period and~~thirty (30) days to settle and compromise such claim, ~~another 20 days after the date~~ and if unable to agree on ~~which the Indemnified Party shall have given~~ any settlement or compromise, such ~~second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor~~ claim for indemnification shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In the event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor settled by arbitration in accordance with the ~~arbitration~~ provisions of Section 11.1 of this Agreement~~. If~~ , and any ~~Indemnitor fails~~ Loss established by reason of such settlement, compromise or arbitration shall be deemed to ~~pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also~~ be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarterfinally determined.

Appears in 1 contract

Samples: Formation Agreement (Bell Atlantic Corp)

Procedure for Claims. (a) ~~Any Person that desires to seek indemnification under~~ Promptly, but in any ~~part~~ event within 10 days after obtaining knowledge of ~~this Article X (each~~any claim or demand which may give rise to, ~~an “Indemnified Party”) shall~~ or could reasonably give ~~notice (~~rise to, a ~~“Claim Notice”) to each party responsible or alleged to be responsible~~ claim for indemnification hereunder (an ~~“Indemnitor”) prior to any applicable Expiration Date specified below. Such notice shall explain with specificity the nature of the claim~~"Indemnification Claim"), the ~~specific Article and section~~ Purchaser shall give written notice to the Company of ~~this Agreement to which the claim relates and the parties known to be involved, and shall specify the amount~~ such Indemnification Claim ("Notice of the estimated damages relating thereto. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but shall also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”"). ~~If an Indemnified Party gives a~~ A Notice of Claim ~~Notice for an Unliquidated Claim, the Indemnified Party~~ shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first be given with respect to ~~an Unliquidated Claim~~all Indemnification Claims; provided, however, that the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Notice of Claim ~~Response~~ to the Company shall not relieve the Company from any liability that it may have to the Purchaser Indemnified Parties hereunder to the extent that the Company is not prejudiced by such failure. The Notice of Claim shall set forth the amount (or a reasonable estimate) of the loss, damage or expense suffered, or which may be ~~deemed an election not to dispute a Claim Notice unless~~ suffered, by the Purchaser Indemnified Party ~~shall have given~~ as a ~~second~~ result of such Indemnification Claim ~~Notice after expiration~~ and the aggregate amount of all Indemnification Claims to date and a brief description of the ~~Response Period and~~facts giving rise to such Indemnification Claim. The Purchaser shall furnish to the Company such information (in reasonable detail) as the Purchaser may have with respect to such Indemnification Claim (including copies of any summons, ~~another 20 days after~~ complaint or other pleading which may have been served on it and any written claim, demand, invoice, billing or other document evidencing or asserting the ~~date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period~~same). (b) If the claim or demand set forth in the Notice of Claim is a claim or demand asserted by a third party (a "Third Party Claim"), the Company shall have fifteen days (or such shorter period (but not less than ten days) if any ~~Indemnitor~~ answer or other response or filing with respect to the pleadings served by the third party is required prior to the fifteenth day) after the date of receipt by the Company of the Notice of Claim (the "Notice Date") to notify the Purchaser in writing of the election by the Company to defend the Third Party Claim on behalf of the Purchaser Indemnified Parties. (c) If the Company elects to defend a Third Party Claim on behalf of the Purchaser Indemnified Parties, the Purchaser shall ~~be obligated~~ make available to ~~indemnify an Indemnified~~ the Company and its agents and representatives all records and other materials in the Purchaser's possession which are reasonably required in the defense of the Third Party ~~hereunder, such Indemnitor~~ Claim and the Company shall pay ~~to such Indemnified Party within 30 days after~~ any expenses payable in connection with the ~~last day~~ defense of the ~~Response Period~~ Third Party Claim as they are incurred (whether incurred by the ~~amount to which such Indemnified Party shall be entitled. In~~ Purchaser or the ~~event~~ Company). (d) If the Company has assumed control of ~~a dispute as to~~ the ~~amount or manner of indemnification under this Article X~~defense, the ~~Indemnified~~ Company may contest or settle the Third Party Claim on such terms as the Company may ~~pursue whatever legal remedies may be available for recovery~~ choose, provided, however, that the Company will not have the right, without the prior written consent of the ~~Damages claimed~~ Purchaser, to settle any such claim if such settlement (i) arises from ~~any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all~~ or is part of any ~~indemnification obligation when due~~criminal action, ~~then such Indemnitor Party shall also be obligated~~ suit or proceeding (ii) contains a stipulation to, confession of judgment with respect to, or admission or acknowledgment of, any liability or wrongdoing on the part of any Purchaser Indemnified Party, (iii) relates to ~~pay~~ any foreign federal, state or local tax matters, (iv) provides for injunctive relief, or other relief other than damages, which is binding on any Purchaser Indemnified Party, (v) does not fully release all Purchaser Indemnified Parties with respect to the ~~applicable~~ relevant Third Party Claim or (vi) has any res judicata or collateral estoppel effect that could be adverse to any Purchaser Indemnified Party. (e) If the Company elects to defend a Third Party Claim, the Purchaser Indemnified Parties shall have the right to participate in the defense of the Third Party Claim, at the Purchaser Indemnified Parties' expense (and without the right to indemnification for such expense under this Agreement); provided, however, that the reasonable fees and expenses of counsel retained by the Purchaser Indemnified Parties shall be at the expense of the Company if (A) the use of the counsel chosen by the Company to represent the Purchaser Indemnified Parties would present such counsel with a conflict of interest; (B) the parties to such proceeding include both Purchaser Indemnified Parties and the Company and there may be legal defenses available to Purchaser Indemnified Parties which are different from or additional to those available to the Company; (C) within ten days after being advised by the Company of the identity of counsel to be retained to represent the Purchaser Indemnified Parties, the Purchaser Indemnified Party ~~interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal~~ affected by such claim shall have objected to the ~~Prime Rate. The Prime Rate~~ retention of such counsel for valid reasons (which shall be stated in ~~effect on the first business day of each calendar quarter shall apply~~ a written notice to the ~~amount~~ Company), and the Company shall not have retained different counsel reasonably satisfactory to such Purchaser Indemnified Party; or (iv) the Company shall authorize the Purchaser Indemnified Parties to retain separate counsel at the expense of the ~~unpaid~~ Company. (f) If the Company elects to defend a Third Party Claim, and does not defend a Third Party Claim in good faith, the Purchaser Indemnified Parties shall have the right, in addition to any other right or remedy it may have hereunder, at the sole and exclusive expense of the Company, to defend such Third Party Claim; provided, however, that such expenses shall be payable by the Company only if and when such Third Party Claim becomes payable. (g) The Purchaser shall cooperate with the Company in the defense of Third Party Claims. Subject to the foregoing, (i) the Purchaser Indemnified Parties shall not have any obligation ~~during such calendar quarter~~to participate in the defense of or to defend any Third Party Claim and (ii) the Purchaser Indemnified Parties' defense of or participation in the defense of any Third Party Claim shall not in any way diminish or lessen the right to indemnification as provided in this Section 7.

Appears in 1 contract

Samples: Put Option and Stock Purchase Agreement (Diametrics Medical Inc)

Procedure for Claims. (a) Any Person that desires to seek indemnification under any part of this ~~Article X~~ Section 11 (each, an “"Indemnified Party”") shall give notice (a “"Claim Notice”") to each party ~~responsible~~ responsible, or alleged to be ~~responsible~~ responsible, for indemnification hereunder (an “"Indemnitor”") prior to any applicable Expiration Date specified below. Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be ~~involved~~invoked, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 20 days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period ~~and,~~ and another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a ~~Claim~~ Response Notice within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Claim Response Period the amount to which such Indemnified Party shall be entitled. ~~In the event of~~ If there shall be a dispute as to the amount or manner of indemnification under this ~~Article X~~Section 11, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation within 60 days of the date when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day, after such 60-day period, during which the obligation remains unpaid at an annual rate equal to the Prime Rate~~. The~~ , and the Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter. (c) Whenever there is an event, condition or a circumstance (a "Possible Breach"), the subject matter of which is covered by more than one of the representations and warranties contained in Section 4 or Section 5 (the "Applicable Representations") and one or more of such representations (the "Specifically Applicable Representations") more specifically relate to the subject matter of the Possible Breach, then if such Possible Breach would cause a breach of any Specifically Applicable Representations, the fact that a breach may not have occurred with respect to any of the more general Applicable Representations shall not affect an Indemnified Party's ability to claim a breach of the Specifically Applicable Representations. By way of illustration but not by way of limitation, if, for example, an inaccuracy in the Financial Statements exists with respect to Inventory that is unknown to the Company and, therefore, would not constitute a breach of Section 4.26 by virtue of the knowledge limitation in Section 4.26, a Buyer Indemnified Party would still be able to claim a breach of the representations and warranties in Section 4.5 with respect to Financial Statements and in Section 4.11 with respect to Inventory since Section 4.5 and Section 4.11 more specifically relate to the Financial Statements and Inventory.

Appears in 1 contract

Samples: Merger Agreement (Verticalnet Inc)

Procedure for Claims. ~~(a) Any Person that desires~~ An Indemnified Party wishing to ~~seek~~ assert a claim for indemnification under ~~any part of~~ this Article ~~X (each, an “Indemnified Party”)~~ VI shall ~~give~~ deliver to the Indemnifying Party a written notice (a “"Claim Notice”") which contains (i) a description and the amount (the "Claimed Amount") of any Damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to ~~each party responsible or alleged to be responsible for~~ indemnification ~~hereunder (an “Indemnitor”) prior to any applicable Expiration Date specified below. Such notice shall explain with specificity the nature~~ under this Article VI and a reasonable explanation of the ~~claim, the specific Article and section of this Agreement to which the claim relates and the parties known to be involved~~basis therefor, and ~~shall specify~~ (iii) a demand for payment in the amount of ~~the estimated damages relating thereto~~such Damages. ~~If the matter to which~~ Within 20 days after delivery of a ~~claim relates shall not have been resolved as of the date of the~~ Claim Notice, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the Claimed Amount (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Claimed Amount, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the Claimed Amount (the "Agreed Amount") (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any of the Claimed Amount. If the Indemnifying Party in such response contests the payment of all or part of the Claimed Amount, the Indemnifying Party and the Indemnified Party shall ~~estimate~~ use good faith efforts to resolve such dispute. If such dispute is not resolved within 30 days following the delivery by the Indemnifying Party of such response, the Indemnifying Party and the Indemnified Party shall each have the right to submit such dispute to a court of competent jurisdiction. If a written notice does not state the amount of claimed, such omission will not preclude the Indemnified Party from recovering from the Indemnifying Party with respect to the claim described in such notice if the ~~Claim Notice, but shall also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”)~~Claimed Amount is promptly provided after it is determined. ~~If an Indemnified Party gives a Claim Notice for an Unliquidated Claim~~In order to assert its right to indemnification under this Article VI, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 days (the “Response Period”) after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall will not be ~~deemed an election not~~ required to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such periodprovide any notice except as provided in this Section 6.3(b). (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In the event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter.

Appears in 1 contract

Samples: Asset Purchase Agreement (Ipix Corp)

Procedure for Claims. ~~(a) Any Person that desires~~ An Indemnified Party wishing to ~~seek~~ assert a claim for indemnification under ~~any part of~~ this Article ~~X (each, an “Indemnified Party”)~~ VI shall ~~give~~ deliver to the Indemnifying Party a written notice (a “Claim Notice”) ~~to each party responsible or alleged to be responsible for indemnification hereunder~~ which contains (an i) a description and the amount (the “~~Indemnitor~~Claimed Amount”) ~~prior~~ of any Damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to ~~any applicable Expiration Date specified below. Such notice shall explain with specificity the nature~~ indemnification under this Article VI and a reasonable explanation of the ~~claim, the specific Article and section of this Agreement to which the claim relates and the parties known to be involved~~basis therefor, and ~~shall specify~~ (iii) a demand for payment in the amount of such Damages. The failure to notify the ~~estimated damages relating thereto~~Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to the Indemnified Party, except to the extent that the Indemnifying Party is prejudiced by the Indemnified Party’s failure to give such notice. ~~If the matter to which~~ Within 30 days after delivery of a ~~claim relates shall not have been resolved as of the date of the~~ Claim Notice, the Indemnifying Party shall deliver to the Indemnified Party ~~shall estimate~~ a written response in which the ~~amount~~ Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the ~~claim~~ Claimed Amount (in which case such response shall be accompanied by a payment by the ~~Claim Notice~~Indemnifying Party to the Indemnified Party of the Claimed Amount, by certified check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the Claimed Amount (the “Agreed Amount”) (in which case such response shall ~~also specify therein~~ be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by certified check or by wire transfer), or (III) contest that the ~~claim has not yet been liquidated (an “Unliquidated Claim”)~~Indemnified Party is entitled to receive any of the Claimed Amount. If ~~an Indemnified~~ the Indemnifying Party ~~gives a Claim Notice for an Unliquidated Claim~~in such response contests the payment of all or part of the Claimed Amount, the Indemnifying Party and the Indemnified Party shall ~~also give a second Claim Notice (the “Liquidated Claim Notice”)~~ use good faith efforts to resolve such dispute. If such dispute is not resolved within 60 days ~~after~~ following the ~~matter giving rise to~~ delivery by the ~~claim becomes finally resolved~~Indemnifying Party of such response, the Indemnifying Party and the ~~Second Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any~~ Indemnified Party ~~that has given~~ shall each have the right to submit such dispute to a ~~Claim Notice (a “Claim Response”) within 60 days (the “Response Period”) after the later~~ court of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given competent jurisdiction in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In the event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarterSection 11.12.

Appears in 1 contract

Samples: Stock Purchase and Sale Agreement (Idx Systems Corp)

Procedure for Claims. (a) ~~Any Person that~~ Whenever an Indemnified Party desires to seek indemnification under any part of this Article ~~X (each~~IX, ~~an “Indemnified Party”)~~ it shall give notice (a “Claim Notice”) to ~~each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”)~~ the Indemnifying Party prior to ~~any~~ the expiration of the applicable ~~Expiration Date specified below~~survival period, if any, set forth in Section 9.2. Such notice shall explain ~~with specificity~~ in reasonable detail the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the actual amount of Damages suffered by the ~~estimated damages relating thereto~~Indemnified Party. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate in good faith the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 days after the matter giving rise to the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claimliquidated. Each ~~Indemnitor~~ Indemnifying Party to which a Claim Notice is given shall respond to any Indemnified Party that has given a such Claim Notice (a “Claim Response”) within 60 thirty (30) days (the “Response Period”) after the ~~later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the~~ date on which ~~the Liquidated~~ such Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the ~~Indemnitor~~ Indemnifying Party giving the Claim Response disputes the claim described in the Claim Notice. If ~~any Indemnitor~~ the Indemnifying Party fails to give a Claim Response within the Response Period, such ~~Indemnitor~~ Indemnifying Party shall be deemed not to dispute the claim described in the related Claim Notice. If ~~any Indemnitor~~ the Indemnifying Party elects not to dispute all or any portion of a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the undisputed amount of the actual Damages set forth in such claim shall be conclusively deemed to be an obligation of such ~~Indemnitor~~Indemnifying Party (any such undisputed amount, a “Conceded Claim”). ~~For~~ If the ~~purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely~~ Indemnifying Party provides its Claim Response ~~shall not be deemed an election not to dispute a Claim Notice unless~~ within the Response Period, the Indemnified Party and the Indemnifying Party shall ~~have given~~ then negotiate resolution of any claims that the Indemnifying Party did not concede or is not deemed to concede in its Claim Response (any such claim, an “Unresolved Claim”) for a ~~second Claim Notice after expiration~~ period of ~~the Response Period and, another 20~~ thirty (30) days after the date ~~on which~~ such Claim Response is provided. If the Indemnified Party ~~shall have given~~ and the Indemnifying Party are unable to resolve such ~~second~~ Unresolved Claim ~~Notice shall have expired without the Indemnitor's having given a Claim Response~~ within such thirty (30) day period, the Indemnified Party may thereafter submit such Unresolved Claim to arbitration in accordance with Section 9.5. (b) If With respect to any ~~Indemnitor shall be obligated~~ Conceded Claim, the Indemnifying Party shall, subject to ~~indemnify an Indemnified Party hereunder~~the second sentence immediately succeeding, ~~such Indemnitor shall~~ pay to ~~such~~ the Indemnified Party within ~~30 days~~ three (3) Business Days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled~~. In~~ , which the ~~event~~ Parties acknowledge, notwithstanding any provision to the contrary contained in this Agreement, shall not, in the case of a ~~dispute as~~ claim subject to Section 9.4(d), extend to Unliquidated Damages. With respect to any Unresolved Claim, the Indemnifying Party shall, subject to the ~~amount~~ immediately succeeding sentence, pay to the Indemnified Party within three (3) Business Days after the final resolution of such Unresolved Claim (whether by mutual agreement of the Indemnifying Party and the Indemnified Party or ~~manner~~ pursuant to a definitive award in arbitration in accordance with Section 9.5), the amount, if any, to which such Indemnified Party shall be entitled, which the Parties acknowledge, notwithstanding any provision to the contrary contained in this Agreement, shall not, in the case of ~~indemnification~~ a claim subject to Section 9.4(d), extend to Unliquidated Damages. If the Indemnified Party shall be a Buyer Indemnified Party, it shall obtain payment of the Damages to which it is entitled as aforesaid under this Article XIX from the Escrow Funds, ~~the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor~~ in accordance with the ~~arbitration provisions~~ Escrow Agreement, to the extent that Escrow Funds are then being held by the Escrow Agent and are not subject to other claims for indemnification; provided, that if the amount of the Escrow Funds available for payment of such Damages is less than the amount of Damages to which such Buyer Indemnified Party is entitled as aforesaid, then subject to the limitations contained in this ~~Agreement~~Article IX, the Sellers shall be liable for such deficiency, and the Buyer Indemnified Party shall have the right to obtain payment of such Damages from (i) the Escrow Funds to the extent available and (ii) subject to the limitations contained in this Article IX, directly from the Sellers for the remainder of such Damages in excess of the Escrow Funds. If any ~~Indemnitor~~ Indemnifying Party fails to pay when due as aforesaid all or part of any indemnification obligation ~~when due~~not subject to payment from the Escrow Funds, which for Conceded Claims shall be five (5) days after the date of the Claim Response corresponding to such Conceded Claim and for Unresolved Claims shall be five (5) days after the final resolution of such Unresolved Claim, then such ~~Indemnitor~~ Indemnifying Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day after the due date during which the obligation remains unpaid at an annual rate equal to the Prime Rate~~. The~~ , and the Prime Rate in effect on the first ~~business day~~ Business Day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter. (c) If the Indemnified Party is a Buyer Indemnified Party and, pursuant to Section 9.4(b), such Buyer Indemnified Party is obligated to obtain any portion of the funds to which such Buyer Indemnified Party is entitled from the Escrow Funds, then, within five (5) Business Days from the date on which such Buyer Indemnified Party becomes entitled to such funds, Buyer and the Sellers’ Representative shall provide joint written instructions to the Escrow Agent as to (i) the amount of funds, if any, to be disbursed from the Escrow Funds and (ii) instructions as to the manner in which such funds shall be disbursed by the Escrow Agent.

Appears in 1 contract

Samples: Stock Purchase Agreement (Mantech International Corp)

Procedure for Claims. (a) Any Person that desires to seek indemnification under any ~~part~~ provision of this Article X IX or any other provision of this Agreement providing for indemnification (other than Article VIII) (each, an “Indemnified Party”) shall give notice (a “Claim Notice”) to each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) prior to any applicable Expiration Date specified below. Such ~~notice~~ Claim Notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within 60 sixty (60) days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. Any failure to give a Claim Notice in a timely manner pursuant to this Section 9.4(a) shall not limit the obligation of the Indemnitor under this Article IX, except to the extent such Indemnitor is prejudiced thereby and except as otherwise provided in Section 9.7. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) within 60 thirty (30) days (the “Response Period”) after the later of (ia) the date that the Claim Notice is given or (iib) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice, Liquidated Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice, if applicable, or Liquidated Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice, if applicable, or Liquidated Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. ~~For~~ If the ~~purposes of~~ Indemnitor notifies the ~~immediately preceding sentence, an Indemnitor's failure to give a timely~~ Indemnified Party in the Claim Response ~~shall not be deemed an election not to dispute a Claim Notice unless~~ that it disputes the claim made by the Indemnified Party, then the Indemnitor and the Indemnified Party shall ~~have given~~ endeavor in good faith for a ~~second Claim Notice after expiration~~ period of thirty (30) days to settle and compromise such claim, and if unable to agree on any settlement or compromise, such claim for indemnification shall be settled by mediation and arbitration in accordance with the ~~Response Period and~~provisions of Section 10.1 of this Agreement, ~~another 20 days after the date on which the Indemnified Party~~ and any Loss established by reason of such settlement, compromise or arbitration shall ~~have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period~~be deemed to be finally determined. (b) ~~If any Indemnitor~~ Any Loss that is finally determined in the manner set forth in Section 9.4(a) shall be ~~obligated~~ paid by the Indemnitor to ~~indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such~~ the Indemnified Party within 30 thirty (30) days after (a) the last day of the Response Period the amount to which such Indemnified Party shall be entitled. In the event of a dispute as to the amount or manner of indemnification under this Article X, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any Indemnitor in accordance with the arbitration provisions of this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor Party shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter.or

Appears in 1 contract

Samples: u.s. Wireless Alliance Agreement (Verizon Wireless Capital LLC)

Procedure for Claims. (a) ~~Any Person~~ An Indemnified ACSYS Party or an Indemnified Seller Party that desires to seek indemnification under any part of this Article X (each, an “"Indemnified Party”") shall give notice (a “"Claim Notice”") to each party responsible or alleged to be responsible for indemnification hereunder (an “"Indemnitor~~”) prior to any applicable Expiration Date specified below~~"). Such notice shall briefly explain ~~with specificity~~ the nature of the ~~claim, the specific Article and section of this Agreement to which the~~ claim ~~relates~~ and the parties known to be involved, and shall specify the amount ~~of the estimated damages relating thereto~~thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but ~~shall~~ also specify therein that the claim has not yet been liquidated (an “"Unliquidated Claim”"). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “"Liquidated Claim Notice”") within 60 days after the matter giving rise to the claim becomes finally resolved, and the ~~Second~~ Liquidated Claim Notice shall specify the amount of the claim. Each Indemnitor to which or whom a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “"Claim Response”") within 60 30 days (the “"Response Period”") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. For the purposes of the immediately preceding sentence, an Indemnitor's failure to give a timely Claim Response shall not be deemed an election not to dispute a Claim Notice unless the Indemnified Party shall have given a second Claim Notice after expiration of the Response Period and, another 20 days after the date on which the Indemnified Party shall have given such second Claim Notice shall have expired without the Indemnitor's having given a Claim Response within such period. (b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30 days after the last day of the applicable Response Period the amount to which such Indemnified Party shall be entitled. ~~In the event of~~ If there shall be a dispute as to the amount or manner of indemnification under this Article X, the Indemnitor and the Indemnified Party shall seek to resolve such dispute through negotiations and, if such dispute is not resolved within twenty days, the Indemnified Party may pursue whatever legal remedies may be available for recovery of the Damages claimed from any ~~Indemnitor in accordance with the arbitration provisions of this Agreement~~Indemnitor. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor ~~Party~~ shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to 10% or the ~~Prime Rate. The Prime Rate in effect on the first business day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter~~maximum rate permitted by applicable law, whichever is less.

Appears in 1 contract

Samples: Merger Agreement (Acsys Inc)

Appears in 1 contract

Samples: Asset Purchase Agreement (Discovery Laboratories Inc /De/)

Common use of Procedure for Claims Clause in Contracts