Recovery from Third Parties. Where, following the Completion Date, the Buyer or any Group Company is entitled to recover from any Third Party an amount (the “Recovery Amount”) in respect of any matter or event which gives rise to a Warranty Claim or an Indemnity Claim (including under any insurance policy): 13.11.1 the Buyer shall not be restricted from pursuing that Warranty Claim or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller; 13.11.2 the Buyer shall notify the Seller of such entitlement as soon as reasonably practicable, unless the disclosure of such entitlement would cause the Buyer or any Group Company to breach a confidentiality obligation; 13.11.3 if the Third Party in question is an insurance company, the Buyer shall, or shall cause the relevant Group Company to, take all reasonable actions to recover the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep the Seller reasonably informed of the progress of such recovery, unless the provision of such information would cause the Buyer or any Group Company to breach a confidentiality obligation; 13.11.4 if the Third Party in question is not an insurance company, the Buyer shall assign its claim against such Third Party to the Seller only if all of the following conditions are satisfied: (a) the Seller pays and settles in full to the Buyer the amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller; (b) the Buyer’s claim against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third Party); and (c) such assignment does not prejudice legitimate business interests of the Buyer, provided that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment. 13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4: (a) any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination of the Warranty Claim or Indemnity Claim (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount), will reduce the amount of such Claim by an equivalent amount; and (b) if recovery of the Recovered Amount is delayed until after such Claim has been satisfied by the Seller, the Buyer shall repay to the Seller the amount so recovered (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount) up to the amount of such Claim satisfied by the Seller.
Appears in 2 contracts
Samples: Agreement for the Sale and Purchase of the Issued Share Capital (Yandex N.V.), Agreement for the Sale and Purchase of Shares (Yandex N.V.)
Recovery from Third Parties. Where9.1 Where the Seller has paid an amount under paragraph 2 above in respect of any Liability for Tax, following and the Completion DatePurchaser, the Buyer relevant Purchasing Entity or any Group Transferred Company is is, or becomes, entitled to recover from some other person that is not the Transferred Company, the Purchaser or the relevant Purchasing Entity or any Third Party an other company in the Purchaser's Tax Group, any amount (the “Recovery Amount”) in respect of any matter such Liability for Tax, the Purchaser or event which gives rise to a Warranty Claim the relevant Purchasing Entity shall or an Indemnity Claim shall procure that the Transferred Company shall:
(including under any insurance policy):
13.11.1 the Buyer shall not be restricted from pursuing that Warranty Claim or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller;
13.11.2 the Buyer shall A) notify the Seller of such its entitlement as soon as reasonably practicable; and
(B) if required by the Seller and, unless subject to the disclosure Purchaser, the relevant Purchasing Entity and the Transferred Company being indemnified by the Seller against any Tax that may be suffered on receipt of such entitlement would cause that amount and any losses, liabilities, damages, costs and expenses incurred in recovering that amount, take, or procure that the Buyer or any Group Transferred Company takes, all steps reasonably requested by the Seller to breach a confidentiality obligation;
13.11.3 if enforce that recovery against the Third Party person in question is an insurance company, the Buyer shall, or shall cause the relevant Group Company to, take all reasonable actions to recover the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep (keeping the Seller reasonably fully informed of the progress of such recoveryany action taken) provided that the Purchaser and the relevant Purchasing Entity shall not be required to take any action (or to procure that any action is taken) under this paragraph 9.1 (other than an action against a Tax Authority) that, unless in the provision of such information would cause Purchaser's or the Buyer relevant Purchasing Entity’s reasonable opinion, is likely to harm its or the Transferred Company's commercial or employment relationship (potential or actual) with that or any Group Company to breach a confidentiality obligation;other person in any material respect.
13.11.4 if 9.2 If the Third Party in question is not an insurance companyPurchaser, the Buyer relevant Purchasing Entity or the Transferred Company recovers any amount referred to in paragraph 9.1 above, the Purchaser or the relevant Purchasing Entity shall assign its claim against such Third Party account to the Seller only if all of for the following conditions are satisfiedlesser of:
(aA) any amount recovered (including any related interest or related additional payment made by any Tax Authority) less any Tax suffered in respect of that amount and any losses, liabilities, damages, costs and expenses incurred in recovering that amount (except if and to the extent that amount has already been made good by the Seller pays and settles in full to the Buyer the amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(bunder paragraph 9.1(B) the Buyer’s claim against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third Partyabove); and
(cB) such assignment does not prejudice legitimate business interests of the Buyer, provided that if the Buyer refuses to assign the claim against such Third Party to amount paid by the Seller on the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination of the Warranty Claim or Indemnity Claim (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered under paragraph 2 above in respect of the Recovered Amount), will reduce the amount of such Claim by an equivalent amount; and
(b) if recovery of the Recovered Amount is delayed until after such Claim has been satisfied by the Seller, the Buyer shall repay to the Seller the amount so recovered (less any costs and expenses incurred by the Buyer or such Group Company Liability for Tax in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount) up to the amount of such Claim satisfied by the Sellerquestion.
Appears in 2 contracts
Samples: Share and Asset Purchase Agreement (LivaNova PLC), Share and Asset Purchase Agreement (LivaNova PLC)
Recovery from Third Parties. WhereIf, following in the Completion Date, event of any payment becoming due from the Buyer Warrantors under part 2 or for breach of any Group Taxation Warranty and the Company either is immediately entitled at the due date for the making of that payment to recover from some other person any Third Party an amount (the “Recovery Amount”) sum in respect of any matter the Taxation Liability that has resulted in that payment becoming due from the Warrantors, or event which gives rise at some subsequent date becomes entitled to make such a Warranty Claim or an Indemnity Claim recovery, then the Purchaser shall procure that the Company shall (including under any insurance policy):
13.11.1 the Buyer shall not be restricted from pursuing that Warranty Claim or Indemnity Claim or any other Claim in relation either of those cases) but without prejudice to the same subject matter against Warrantors' obligations to make payment under part 2 or for breach of any Taxation Warranties on the Seller;
13.11.2 the Buyer shall due date, promptly notify the Seller Warrantors of such its entitlement as soon as reasonably practicableand the Purchaser shall procure, unless if so required by the disclosure of such entitlement would cause Warrantors, (provided the Buyer or any Group Warrantors shall first indemnify the Company to breach a confidentiality obligation;
13.11.3 if the Third Party in question is an insurance companyPurchaser's reasonable satisfaction against all losses, damages, reasonable costs and expenses which may be incurred by the Buyer shall, or Company) that the Company takes such reasonable steps as the Warrantors shall cause reasonably request to enforce that recovery (keeping the relevant Group Company to, take all reasonable actions to recover the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep the Seller reasonably Warrantors informed of the progress of such recovery, unless the provision of such information would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance company, the Buyer action taken) and shall assign its claim against such Third Party account to the Seller only if all Warrantors for so much of the following conditions are satisfied:
any sum so recovered (a) the Seller pays and settles in full to the Buyer the amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third Party); and
(c) such assignment does not prejudice legitimate business interests of the Buyer, provided that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
less (a) any sum recovered Tax payable by the Buyer from the Third Party Company thereon, and (the “Recovered Amount”b) before Determination of the Warranty Claim or Indemnity Claim (less any all reasonable charges, costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount), will reduce such sum) as does not exceed the amount of such Claim by an equivalent amount; and
(b) if recovery of which the Recovered Amount Warrantors have paid or that is delayed until after such Claim has been satisfied due to be paid by the Seller, the Buyer shall repay to the Seller the amount so recovered (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount) up to the amount of such Claim satisfied by the SellerWarrantors under this Deed).
Appears in 1 contract
Recovery from Third Parties. Where(i) Subject to and save as provided in paragraph 2(B) of Part B of Schedule 6, following where the Completion DatePurchaser, a member of the Buyer or any Purchaser's Group and/or a Group Company is are at any time entitled to recover from some other person any Third Party an amount (the “Recovery Amount”) sum in respect of any matter or event which gives giving rise to a Warranty Claim claim under the Warranties or an Indemnity Claim (including under the Environmental Undertaking or under any insurance policy):
13.11.1 of the Buyer other provisions of this Agreement, the Purchaser shall, and shall not be restricted from pursuing procure that Warranty Claim or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller;
13.11.2 the Buyer shall notify the Seller of such entitlement as soon as reasonably practicable, unless the disclosure of such entitlement would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.3 if or the Third Party in question is an insurance company, relevant member of the Buyer Purchaser's Group shall, provided that GEC shall have given the Purchaser such indemnities as the Purchaser may reasonably require in connection therewith, undertake all reasonable steps to enforce such recovery prior to taking action against GEC (other than to notify GEC of the claim against GEC) and, in the event that the Purchaser or shall cause the relevant such Group Company to, take all reasonable actions to or relevant member of the Purchaser's Group recover the Recovery Amount any amount from such insurance company under such Group Company’s insurance policyother person, and keep the Seller reasonably informed of the progress of such recovery, unless the provision of such information would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance company, the Buyer shall assign its claim against such Third Party to the Seller only if all of the following conditions are satisfied:
(a) the Seller pays and settles in full to the Buyer the amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third Party); and
(c) such assignment does not prejudice legitimate business interests of the Buyer, provided that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 13.11.4(c), it GEC shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) any sum recovered reduced by the Buyer from the Third Party (the “Recovered Amount”) before Determination of the Warranty Claim or Indemnity Claim (amount recovered, less any costs all reasonable costs, charges and expenses incurred by the Buyer Purchaser or such Group Company in or relevant member of the Purchaser's Group recovering that sum from such other person or if that sum is greater, the Recovered Amount and claim shall be extinguished.
(ii) If GEC pays at any Taxation attributable time to the Purchaser or suffered the relevant member of the Purchaser's Group an amount pursuant to a claim in respect of the Recovered Amount)Warranties or under the Environmental Undertaking or under any other provisions of this Agreement and the Purchaser or relevant member of the Purchaser's Group subsequently becomes entitled to recover from some other person any sum in respect of any matter giving rise to such claim, will reduce the Purchaser shall, and shall procure that or the relevant member of the Purchaser's Group shall, provided that GEC shall have given the Purchaser such indemnities as the Purchaser may reasonably require in connection therewith, take all reasonable steps to enforce such recovery, and shall forthwith repay to GEC so much of the amount of such Claim paid by an equivalent amount; and
(b) if recovery GEC to the Purchaser or the relevant member of the Recovered Amount is delayed until after Purchaser's Group as does not exceed the sum recovered from such Claim has been satisfied by the Sellerother person less all reasonable costs, the Buyer shall repay to the Seller the amount so recovered (less any costs charges and expenses incurred by the Buyer Purchaser or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect relevant member of the Recovered AmountPurchaser's Group recovering that sum from such other person; and
(iii) up If any amount is repaid to GEC by the Purchaser or the relevant member of the Purchaser's Group pursuant to sub-paragraph (D)(ii) above, an amount equal to the amount so repaid shall be deemed never to have been paid by GEC to the Purchaser for the purposes of such Claim satisfied by the Sellerparagraph 3.1.
Appears in 1 contract
Recovery from Third Parties. Where, following 8.1 Where Nobbs and Wxxxxxxx have paid an amount in full discharge of a liability under paragraph 2 in respect of any Liability for Taxation and the Completion Date, Purchaser or the Buyer or any Group Company is or becomes entitled to recover from some other person (not being the Purchaser, the Company or any Third Party an other company within the Purchaser’s Tax Group), any amount (the “Recovery Amount”) in respect of any matter such Liability for Taxation, the Purchaser shall or event which gives rise to a Warranty Claim or an Indemnity Claim shall procure that the Company shall:
(including under any insurance policy):
13.11.1 the Buyer shall not be restricted from pursuing that Warranty Claim or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller;
13.11.2 the Buyer shall a) notify the Seller Nobbs and Wxxxxxxx of such its entitlement as soon as reasonably practicable, unless the disclosure of such entitlement would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.3 if the Third Party in question is an insurance company, the Buyer shall, or shall cause the relevant Group Company to, take all reasonable actions to recover the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep the Seller reasonably informed of the progress of such recovery, unless the provision of such information would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance company, the Buyer shall assign its claim against such Third Party to the Seller only if all of the following conditions are satisfied:
(a) the Seller pays and settles in full to the Buyer the amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third Party); and
(c) such assignment does not prejudice legitimate business interests of the Buyer, provided that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination of the Warranty Claim or Indemnity Claim (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount), will reduce the amount of such Claim by an equivalent amount; and
(b) if recovery of the Recovered Amount is delayed until after such Claim has been satisfied required by the SellerNobbs and Wxxxxxxx and, the Buyer shall repay subject to the Seller Purchaser or the Company being secured and indemnified by Nobbs and Wxxxxxxx against any Tax that may be suffered on receipt of that amount so recovered (less and any costs and expenses incurred by the Buyer or such Group Company in recovering that amount, take or procure that the Recovered Amount Company takes all reasonable steps to enforce that recovery against the person in question (keeping Nobbs and Wxxxxxxx, reasonably informed of the progress of any action taken), provided that the Purchaser shall not be required to take any action pursuant to this paragraph 8.1 (other than an action against:
(i) a Taxation attributable Authority; or
(ii) a person who has given Tax advice to the Company on or before Closing), which, in the Purchaser’s reasonable opinion, is likely to harm its, the Company’s commercial relationship (potential or actual) with that or any other person.
8.2 If the Purchaser or the Company recovers any amount referred to in paragraph 8.1, the Purchaser shall account to Nobbs and Wxxxxxxx for the lesser of:
(a) any amount recovered (including any related interest or related repayment supplement) less any Tax suffered in respect of the Recovered Amount) up that amount and any costs and expenses incurred in recovering that amount (save to the extent that amount has already been made good by Nobbs and Wxxxxxxx under paragraph 8.1(b)); and
(b) the amount paid by Nobbs and Wxxxxxxx under paragraph 2 in respect of such Claim satisfied by the SellerLiability for Taxation in question.
Appears in 1 contract
Recovery from Third Parties. Where, following 7.1 Where the Completion Date, Seller has paid an amount in full discharge of a liability under paragraph 2 in respect of any Liability for Taxation and the Buyer or any Group the Company is or becomes entitled to recover from some other person (not being the Buyer or the Company or any Third Party an other company within the Buyer’s Tax Group), any amount (the “Recovery Amount”) in respect of any matter or event which gives rise to a Warranty Claim or an Indemnity Claim (including under any insurance policy):
13.11.1 such Liability for Taxation, the Buyer shall not be restricted from pursuing or shall procure that Warranty Claim or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller;Company shall:
13.11.2 the Buyer shall (a) notify the Seller of such its entitlement as soon as reasonably practicable, unless the disclosure of such entitlement would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.3 if the Third Party in question is an insurance company, the Buyer shall, or shall cause the relevant Group Company to, take all reasonable actions to recover the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep the Seller reasonably informed of the progress of such recovery, unless the provision of such information would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance company, the Buyer shall assign its claim against such Third Party to the Seller only if all of the following conditions are satisfied:
(a) the Seller pays and settles in full to the Buyer the amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third Party); and
(c) such assignment does not prejudice legitimate business interests of the Buyer, provided that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination of the Warranty Claim or Indemnity Claim (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount), will reduce the amount of such Claim by an equivalent amount; and
(b) if recovery of the Recovered Amount is delayed until after such Claim has been satisfied required by the SellerSeller and, the Buyer shall repay subject to the Company being indemnified on demand by the Seller the against any Tax that is suffered on receipt of that amount so recovered (less and any costs and expenses incurred by in recovering that amount, take or procure that the Company takes all reasonable steps to enforce that recovery against the person in question (keeping the Seller fully informed of the progress of any action taken) provided that the Buyer shall not be required to take any action pursuant to this paragraph 7.1.
7.2 The Buyer shall not be required to take any action pursuant to paragraph 7.1 if in its reasonable opinion, it is likely to harm the commercial relationship (potential or actual) of the Buyer or such Group the Company with the person against whom recovery is sought, or any other person.
7.3 If the Buyer or the Company recovers any amount referred to in recovering paragraph 7.1, the Recovered Amount and Buyer shall account to the Seller for the lesser of:
(a) any Taxation attributable to amount recovered (including any related interest or related repayment supplement) less any Tax suffered in respect of the Recovered Amount) up that amount and any costs and expenses incurred in recovering that amount (save to the extent that amount of such Claim satisfied has already been made good by the SellerSeller under paragraph 7.1(b)); and
(b) the amount paid by the Seller under paragraph 2 in respect of the Liability for Taxation in question.
Appears in 1 contract
Recovery from Third Parties. Where, following 7.1 Where the Completion Date, Vendor has paid an amount in full discharge of a liability under paragraph 1 or in respect of a Tax Warranty Claim in respect of any Liability for Taxation and the Buyer Purchaser or any an Acquired Group Company or a member of the Purchaser’s Tax Group is or becomes entitled to recover from some other person (not being the Purchaser, an Acquired Group Company, any Third Party an other member of the Purchaser’s Tax Group or any current officer, director or employee of any of them) any amount (the “Recovery Amount”) in respect of any matter such Liability for Taxation, the Purchaser shall or event which gives rise to a Warranty Claim or an Indemnity Claim shall procure that the relevant Acquired Group Company shall:
(including under any insurance policy):
13.11.1 a) notify the Buyer shall not be restricted from pursuing that Warranty Claim or Indemnity Claim or any other Claim in relation Vendor of the entitlement (giving reasonable details as to the same subject matter against the Seller;
13.11.2 the Buyer shall notify the Seller of such entitlement entitlement) as soon as reasonably practicable, unless the disclosure of such entitlement would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.3 if the Third Party in question is an insurance company, the Buyer shall, or shall cause the relevant Group Company to, take all reasonable actions to recover the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep the Seller reasonably informed of the progress of such recovery, unless the provision of such information would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance company, the Buyer shall assign its claim against such Third Party to the Seller only if all of the following conditions are satisfied:
(a) the Seller pays and settles in full to the Buyer the amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third Party); and
(c) such assignment does not prejudice legitimate business interests of the Buyer, provided that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination of the Warranty Claim or Indemnity Claim (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount), will reduce the amount of such Claim by an equivalent amount; and
(b) if recovery required by the Vendor and, subject to the Purchaser and the relevant Acquired Group Company or member of the Recovered Amount is delayed until after such Claim has been satisfied Purchaser’s Tax Group being indemnified by the Seller, the Buyer shall repay to the Seller the Vendor against any Tax that may be suffered on receipt of that amount so recovered (less and any reasonable costs and expenses properly incurred by in recovering that amount, take or procure that the Buyer or such relevant Acquired Group Company or member of the Purchaser’s Tax Group takes all reasonable steps to enforce that recovery against the person in recovering question (keeping the Recovered Amount Vendor informed of the progress of any material action taken) provided that the Purchaser shall not be required to take any action pursuant to this paragraph 7.1 which, in the Purchaser's reasonable opinion, is likely to cause harm to its or the relevant Acquired Group Company’s commercial or employment relationship with that or any other person and the Purchaser determines in good faith that such harm is material in the circumstances.
7.2 If the Purchaser or the relevant Acquired Group Company or member of the Purchaser’s Tax Group recovers any Taxation attributable amount referred to in paragraph 7.1, the Purchaser shall, within ten Business Days of making the recovery, pay to the Vendor the lesser of:
(a) any amount recovered (including any related interest or related repayment supplement) less any Tax suffered in respect of the Recovered Amount) up that amount and any reasonable costs and expenses properly incurred in recovering that amount (save to the amount of such Claim satisfied extent that the Tax, costs or expenses have already been made good by the SellerVendor under paragraph 7.1(b)); and
(b) the amount paid by the Vendor under paragraph 2 or the Tax Warranties in respect of the Liability for Taxation in question.
Appears in 1 contract
Recovery from Third Parties. Where, following 7.1 Where the Completion Date, Sellers or the Buyer (or any Group Company other member of the Buyer's Group) is or maybe entitled to recover a Benefit from a third party (including any Third Party an amount (the “Recovery Amount”tax authority) in respect of any matter which is referable to a fact, matter, event or event which gives circumstance giving rise to a Warranty Claim or an Indemnity Claim (including under any insurance policy):
13.11.1 the Buyer shall not be restricted from pursuing that Warranty Claim or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller;
13.11.2 the Buyer shall notify the Seller of such entitlement as soon as reasonably practicable, unless the disclosure of such entitlement would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.3 if the "Third Party in question is an insurance company, Claim") whether before or after the Buyer shall, or shall cause the relevant Group Company to, take all reasonable actions to recover the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep the Seller reasonably informed of the progress of such recovery, unless the provision of such information would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance companySellers have made payment hereunder), the Buyer shall assign its claim against (or, as appropriate, shall procure that the other members of the Buyer's Group shall):-
7.1.1 as soon as is reasonably practical (and in any event within 2 weeks of the Buyer becoming aware of such Third Party Claim) give detailed written notice to the Seller only if all Sellers of the following conditions are satisfied:matter or Benefit and thereafter shall regularly consult with the Sellers with respect to the matter;
7.1.2 before seeking to recover any amount from the Sellers under this Agreement first take all such steps as the Sellers shall reasonably request (awhether by way of a claim against its insurers or otherwise and including but without limitation proceedings or otherwise as the Sellers may reasonably require) to enforce a Third Party Claim or recover a Benefit;
7.1.3 take such action and institute such proceedings and give such information and assistance as the Sellers may reasonably request to enforce against any person (other than the Sellers) the Seller pays and settles in full to the Buyer the amount rights of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third Party); and
(c) such assignment does not prejudice legitimate business interests any member of the Buyer, 's Group in relation to any Third Party Claim provided that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 13.11.4(c), it Sellers shall provide the Seller with an explanation of what legitimate interests indemnify each member of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination of the Warranty Claim or Indemnity Claim (less any Buyer's Group for all reasonable costs and expenses properly incurred as a result of any request or nomination by the Sellers.
7.2 Where the Buyer (or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect other member of the Recovered AmountBuyer's Group) recovers a Benefit from a third party (including any Tax Authority) which is referable to a fact, matter, event or circumstance giving rise to a Claim or obtains a Benefit which is so referable (whether before or after the Sellers have made payment hereunder), will reduce the amount of such Claim by an equivalent amount; and
(b) if recovery of the Recovered Amount is delayed until after such Claim has been satisfied by the Seller, the Buyer shall repay (or, as appropriate, shall procure that another member of the Buyer's Group shall) pay to the Seller the Sellers an amount so recovered (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount) up equal to the amount of the Benefit (less any reasonable costs incurred in recovering or obtaining such Claim satisfied Benefit and any tax actually suffered thereon) to the extent that such amount does not exceed the aggregate payments previously made by the SellerSellers in respect of all Claims. Any amount not so paid to the Sellers shall be carried forward and set off against any future Claims.
Appears in 1 contract
Recovery from Third Parties. Where5.1 If any payment is made by the Sellers under this Schedule in discharge of a liability which arises under this Schedule in respect of a liability in respect of tax and the Purchaser, following any member of the Completion Date, Purchaser’s Group or the Buyer Target Entity concerned becomes aware (or any Group Company ought reasonably to be aware) that it is or has become entitled to recover or obtain from any Third Party an amount (person other than the “Recovery Amount”) Purchaser, any Target Entity or any person connected with any of them a payment or relief in respect of any matter or event which gives rise to a Warranty Claim or an Indemnity Claim the tax liability in question, then the Purchaser shall:
(including under any insurance policy):
13.11.1 the Buyer shall not be restricted from pursuing that Warranty Claim or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller;
13.11.2 the Buyer shall notify the Seller of such entitlement a) as soon as reasonably practicable, unless practicable notify the disclosure Sellers’ Representative of such entitlement would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.3 if the Third Party in question is an insurance company, the Buyer and shall, or shall cause if so requested by the Sellers’ Representative and (subject to the Purchaser and the relevant Group Company toTarget Entity being indemnified to their reasonable satisfaction by the Sellers against all losses (including additional taxation), damages, costs and expenses which may be reasonably incurred) take and procure that the relevant entity takes all reasonable actions steps to recover enforce that recovery (keeping the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep the Seller reasonably Sellers’ Representative informed of the progress of such recovery, unless the provision of such information would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance company, the Buyer shall assign its claim against such Third Party to the Seller only if all of the following conditions are satisfied:
(a) the Seller pays and settles in full to the Buyer the amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third Partyaction taken); and
(c) such assignment does not prejudice legitimate business interests of the Buyer, provided that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination of the Warranty Claim or Indemnity Claim (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount), will reduce the amount of such Claim by an equivalent amount; and
(b) if recovery to the extent any such payment or relief is subsequently received by the Purchaser or the Target Entity concerned, pay to the Sellers’ Representative (on behalf of the Recovered Amount is delayed until after such Claim has been satisfied by the Seller, the Buyer shall repay Sellers) an amount equal to the Seller amount received or the amount so recovered that the Purchaser or the Target Entity concerned saves by virtue of the receipt of the relief (less any the amount of all costs and expenses incurred in obtaining such payment or relief, and net of any tax payable on the amount received or that would have been payable but for the use or set off of any Purchaser’s relief) to the extent that the payment to the Sellers’ Representative does not exceed the payment originally made by the Buyer Sellers (net of any tax suffered thereon by the Purchaser which was not subject to an increased payment under paragraph 1 of Part C of this Schedule), and to the extent that the right to such payment or relief is not prejudiced thereby.
5.2 Where the Purchaser or the Target Entity concerned receives a relief as referred to in paragraph 5.1, a payment shall be made to the Sellers’ Representative within 10 Business Days of the date on which the tax that would have been payable but for the relief would have become payable to a tax authority, and shall not be made to the extent that, but for the use of such Group Company in recovering relief, the Recovered Amount and any Taxation attributable to or suffered Target Entity concerned would have had an actual tax liability in respect of which the Recovered Amount) up Purchaser would have been able to make a claim against any Seller under this Part of this Schedule. In all other cases, payment shall be made within 10 Business Days of receipt of the relevant amount of such Claim satisfied by the Sellerunder Clause 5.1.
Appears in 1 contract
Samples: Deed for Sale and Purchase (Evercore Partners Inc.)
Recovery from Third Parties. Where, following 7.1 Where the Completion DateSellers have paid an amount in full discharge of a liability under paragraph 2 in respect of any Liability for Taxation and the Buyer, the Buyer Company or any Group Company of the Subsidiaries is or becomes entitled to recover from some other person (not being the Buyer, the Company or any Third Party an of the Subsidiaries or any other company within the Buyer´s Tax Group), any amount (the “Recovery Amount”) in respect of any matter or event which gives rise to a Warranty Claim or an Indemnity Claim (including under any insurance policy):
13.11.1 such Liability for Taxation, the Buyer shall not be restricted from pursuing or shall procure that Warranty Claim the Company or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller;relevant Subsidiary shall:
13.11.2 the Buyer shall 7.1.1 notify the Seller Sellers of such its entitlement as soon as reasonably practicable; and
7.1.2 if required by the Sellers and, unless subject to the disclosure Buyer, the Company or the relevant Subsidiary being secured and indemnified by the Sellers against any Tax that may be suffered on receipt of such entitlement would cause that amount and any costs and expenses incurred in recovering that amount, take or procure that the Buyer Company or any Group Company the relevant Subsidiary takes all reasonable steps to breach a confidentiality obligation;
13.11.3 if enforce that recovery against the Third Party person in question is an insurance company, (keeping the Buyer shall, or shall cause the relevant Group Company to, take all reasonable actions to recover the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep the Seller reasonably Sellers fully informed of the progress of such recoveryany action taken), unless the provision of such information would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance company, provided that the Buyer shall assign its claim against such Third Party not be required to take any action pursuant to this paragraph 7.1 which, in the Seller only if all of Buyer´s reasonable opinion, is likely to harm its, the following conditions are satisfied:Company´s or the relevant Subsidiary´s commercial relationship (potential or actual) with that or any other person.
(a) the Seller pays and settles in full to the Buyer the amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third Party); and
(c) such assignment does not prejudice legitimate business interests of 7.2 If the Buyer, provided that if the Company or any of the Subsidiaries recovers any amount referred to in paragraph 7.1 the Buyer refuses to assign the claim against such Third Party shall account to the Seller on Sellers for the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4lesser of:
7.2.1 any amount recovered (aincluding any related interest or related repayment supplement) less any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination Tax suffered in respect of the Warranty Claim or Indemnity Claim (less that amount and any costs and expenses incurred in recovering that amount (save to the extent that amount has already been made good by the Buyer or such Group Company in recovering Sellers under paragraph 7.1.2); and
7.2.2 the Recovered Amount and any Taxation attributable to or suffered amount paid by the Sellers under paragraph 2 in respect of the Recovered Amount), will reduce the amount of such Claim by an equivalent amount; and
(b) if recovery of the Recovered Amount is delayed until after such Claim has been satisfied by the Seller, the Buyer shall repay to the Seller the amount so recovered (less any costs and expenses incurred by the Buyer or such Group Company Liability for Taxation in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount) up to the amount of such Claim satisfied by the Sellerquestion.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Symmetry Medical Inc.)
Recovery from Third Parties. Where, following 9.1 If any payment is made by the Completion Date, the Buyer or any Group Company is entitled to recover from any Third Party an amount (the “Recovery Amount”) Sellers under this Schedule in full discharge of a liability which arises under this Schedule in respect of a Tax Liability and the Purchaser, the Company or the Subsidiary concerned subsequently receives or becomes entitled to receive from any matter person other than the Purchaser, the Company or event which gives rise to a Warranty Claim or an Indemnity Claim (including under any insurance policy):
13.11.1 the Buyer shall not be restricted from pursuing that Warranty Claim or Indemnity Claim Subsidiary concerned or any other Claim person connected with any of them a payment or Relief in relation to respect of the same subject matter against the Seller;
13.11.2 the Buyer shall notify the Seller of such entitlement as soon as reasonably practicable, unless the disclosure of such entitlement would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.3 if the Third Party Tax Liability in question (which payment or Relief is an insurance company, the Buyer shall, or shall cause the relevant Group Company to, take all reasonable actions to recover the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep the Seller reasonably informed of the progress of such recovery, unless the provision of such information would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance company, the Buyer shall assign its claim against such Third Party to the Seller only if all of the following conditions are satisfied:
(a) the Seller pays and settles in full to the Buyer the amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned (including received by virtue of a provision allowing such assignment in a contract legal right), the Purchaser shall pay to the Sellers an amount equal to the amount received or arrangement with such Third Party); and
(c) such assignment does not prejudice legitimate business interests the amount that the Purchaser, the Company or the Subsidiary concerned will save by virtue of the Buyer, provided that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests receipt of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination of the Warranty Claim or Indemnity Claim Relief (less any the amount of all costs and expenses incurred in obtaining such payment or Relief, and net of any Tax payable on the amount received or that would have been payable but for the use or set off of any Relief) to the extent that the payment to the Sellers does not exceed the payment originally made by the Buyer Sellers (net of any Tax suffered thereon), and to the extent that the right to such payment or Relief is not prejudiced thereby. To the extent that the payment or Relief exceeds the payment originally made by the Sellers, such Group excess shall be carried forward and set off against any future liability of the UK Tax Warrantors under this Schedule.
9.2 Where the Purchaser, the Company or the Subsidiary concerned receives a Relief as referred to in recovering paragraph 9.1, a payment shall not be made to the Recovered Amount Sellers before the date on which the Tax that would have been payable but for the Relief would have become recoverable by the appropriate Tax Authority, and any Taxation attributable shall not be made to the extent that, but for the use of such Relief the Company or suffered the Subsidiary concerned would have had an actual Tax Liability in respect of which the Recovered Amount), will reduce Purchaser would have been able to make a claim against the amount of such Claim by an equivalent amount; and
(b) if recovery of the Recovered Amount is delayed until after such Claim has been satisfied by the Seller, the Buyer shall repay to the Seller the amount so recovered (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount) up to the amount of such Claim satisfied by the SellerSellers under this Schedule.
Appears in 1 contract
Recovery from Third Parties. Where, following 9.5.1 Where the Completion Date, Covenantors have paid an amount in full discharge of a liability under clause 9.1 in respect of any Liability for Taxation and the Buyer Purchaser or any Group the Company is or becomes entitled to recover from some other person (not being the Purchaser or the Company or any Third Party other company within the Purchaser’s Tax Group or any employee (in their capacity as an employee of the Company or the Purchaser) of them), any amount (the “Recovery Amount”) in respect of any matter or event which gives rise to a Warranty Claim or an Indemnity Claim such Liability for Taxation (including under any insurance policy):
13.11.1 and otherwise than by the Buyer shall not be restricted from pursuing that Warranty Claim or Indemnity Claim utilisation of the whole or any other Claim in relation to part of any Purchaser’s Relief), the same subject matter against Purchaser shall or shall procure that the Seller;Company shall:
13.11.2 the Buyer shall (a) notify the Seller Covenantors of such its entitlement as soon as reasonably practicable, unless the disclosure of such entitlement would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.3 if the Third Party in question is an insurance company, the Buyer shall, or shall cause the relevant Group Company to, take all reasonable actions to recover the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep the Seller reasonably informed of the progress of such recovery, unless the provision of such information would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance company, the Buyer shall assign its claim against such Third Party to the Seller only if all of the following conditions are satisfied:
(a) the Seller pays and settles in full to the Buyer the amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third Party); and
(c) such assignment does not prejudice legitimate business interests of the Buyer, provided that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination of the Warranty Claim or Indemnity Claim (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount), will reduce the amount of such Claim by an equivalent amount; and
(b) if recovery of the Recovered Amount is delayed until after such Claim has been satisfied reasonably required by the SellerCovenantors and, the Buyer shall repay subject to the Seller Purchaser or the Company being fully indemnified by the Covenantors against any Tax that may be suffered on receipt of that amount so recovered (less and any costs and expenses incurred by the Buyer or such Group Company in recovering that amount, take or procure that the Recovered Amount and Company takes all reasonable steps to enforce that recovery against the person in question (keeping the Covenantors fully informed of the progress of any Taxation attributable action taken) provided that the Purchaser shall not be required to take any action pursuant to this paragraph 9.5.1 which in its reasonable opinion would be materially detrimental to the business of the Company.
9.5.2 If the Purchaser or the Company recovers any amount referred to in clause 9.5.1 the Purchaser shall account to the Covenantors for the lesser of:
(a) any amount recovered less any Tax suffered in respect of that amount and any costs and expenses incurred in recovering that amount (save to the Recovered Amountextent that amount has already been made good by the Covenantors under clause 9.5.1(b)) up to and less the amount of such Claim satisfied recovery which has been taken into account in computing any liability under the Warranties or this clause 9; and
(b) the amount paid by the SellerCovenantors under clause 9.5.1 in respect of the Liability for Taxation in question.
Appears in 1 contract
Samples: Stock Purchase Agreement (Utek Corp)
Recovery from Third Parties. Where(i) Where the Founders have paid an amount under Section 8.3(b) in respect of any Liability for Tax, following or in respect of any other liability, and, on or before the Completion Dateseventh anniversary of Completion, the Buyer or any Company Group Company is Member is, or becomes, entitled to recover from some other person that is not the Company Group Member or the Buyer or any Third Party an other company in the Buyer’s Tax Group, any amount (the “Recovery Amount”) in respect of any matter such Liability for Tax, or event which gives rise to a Warranty Claim or an Indemnity Claim (including under any insurance policy):
13.11.1 such other liability, the Buyer shall not be restricted from pursuing or shall procure that Warranty Claim the Company Group Member or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller;relevant Subsidiary shall:
13.11.2 the Buyer shall (A) notify the Seller Founders of such its entitlement as soon as reasonably practicable; and
(B) if required by the Founders and, unless the disclosure of such entitlement would cause subject to the Buyer and the relevant Company Group Member being indemnified (to the reasonable satisfaction of the Buyer) by the Founders against any Tax that may be suffered on receipt of that amount and any losses, liabilities, damages, costs and expenses incurred in recovering that amount, take, or any procure that the relevant Company Group Company member takes, all steps reasonably requested by the Founders to breach a confidentiality obligation;
13.11.3 if enforce that recovery against the Third Party person in question is an insurance company, (keeping the Buyer shall, or shall cause the relevant Group Company to, take all reasonable actions to recover the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep the Seller reasonably Founders fully informed of the progress of such recovery, unless the provision of such information would cause any action taken) provided that the Buyer shall not be required to take any action (or to procure that any action is taken) under this Section 8.3(f) (other than an action against (1) a Tax Authority, or (2) any Person in respect of any Tax advice given by that Person to the relevant Company Group Member on or before Completion, that in the Buyer’s reasonable opinion, is likely to harm its or the relevant Company Group Member’s material and actual commercial or employment relationship with that Person.
(ii) If on or before the seventh anniversary of Completion, the Buyer, the relevant Company Group Member or the relevant Subsidiary recovers any amount referred to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance companySection 8.3(h)(i), the Buyer shall assign its claim against such Third Party account to the Seller only if all of Founders for the following conditions are satisfiedlesser of:
(aiii) the Seller pays any amount recovered (including any related interest or related additional payment made by any Tax Authority) less any Tax suffered in respect of that amount and settles any losses, liabilities, damages, costs and expenses incurred in full recovering that amount (except if and to the Buyer extent that amount has already been made good by the amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third PartyFounders under Section 8.3(h)(ii)); and
(civ) such assignment does not prejudice legitimate business interests of the Buyer, provided that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) any sum recovered amount paid by the Buyer from the Third Party (the “Recovered Amount”Founders under Section 8.3(b) before Determination of the Warranty Claim or Indemnity Claim (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount), will reduce the amount of such Claim by an equivalent amount; and
(b) if recovery of the Recovered Amount is delayed until after such Claim has been satisfied by the Seller, the Buyer shall repay to the Seller the amount so recovered (less any costs and expenses incurred by the Buyer or such Group Company Liability for Tax in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount) up to the amount of such Claim satisfied by the Sellerquestion.
Appears in 1 contract
Recovery from Third Parties. Where(a) The Parties intend that any Liability subject to indemnification or reimbursement pursuant to this Agreement shall be reduced by the amount of:
(i) Insurance Proceeds that actually reduce the amount of, following or are paid to the Completion Dateapplicable Indemnitee in respect of, the Buyer or any Group Company is entitled to recover such Liability; and/or
(ii) amounts recovered from any Third Party an amount (the “Recovery Amount”) in respect other than Insurance Proceeds, net of any matter costs or event which gives rise to a Warranty Claim expenses incurred in the collection or an Indemnity Claim (including under any insurance policy):
13.11.1 the Buyer shall not be restricted from pursuing that Warranty Claim or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller;
13.11.2 the Buyer shall notify the Seller of such entitlement as soon as reasonably practicable, unless the disclosure of such entitlement would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.3 if the Third Party in question is an insurance company, the Buyer shall, or shall cause the relevant Group Company to, take all reasonable actions to recover the Recovery Amount from such insurance company under such Group Company’s insurance policy, litigation thereof and keep the Seller reasonably informed of the progress of such recovery, unless the provision of such information would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance company, the Buyer shall assign its claim against such Third Party to the Seller only if all of the following conditions are satisfied:
(a) the Seller pays and settles in full to the Buyer less the amount of any Taxes resulting from the receipt thereof, that actually reduce the amount of, or are paid to the applicable Indemnitee in respect of, such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Liability (Third Party to the Seller;Proceeds).
(b) Accordingly, the Buyer’s claim against such amount that an Indemnifying Party is required to pay to an Indemnitee shall be reduced by any Insurance Proceeds or Third Party Proceeds recovered by or on behalf of the Indemnitee from a Third Party in respect of the related Liability.
(c) If an Indemnitee receives an Indemnity Payment and subsequently receives Insurance Proceeds or Third Party Proceeds in respect of such Liability, then the Indemnitee shall pay to the Indemnifying Party an amount equal to the amount of the Indemnity Payment received minus the amount of the Indemnity Payment that would have been due if such Insurance Proceeds or Third Party Proceeds had been received, realized or recovered (and so deducted from the Indemnity Payment) before the Indemnity Payment was made.
(d) An insurer that would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto or have any subrogation rights with respect
(e) Subject, and without prejudice, to Clause 17 (Insurance), each Indemnitee shall use Commercially Reasonable Efforts to seek to collect or recover any Insurance Proceeds to which such Indemnitee is capable entitled in connection with any Liability for which such Indemnitee intends to make an Indemnity Claim; provided, however, that:
(i) such Indemnitee’s inability to collect or recover any such Insurance Proceeds shall not limit the Indemnifying Party’s obligations hereunder;
(ii) an Indemnifying Party may not delay making any indemnification payment required under the terms of being assigned (including by virtue this Agreement, or otherwise satisfying any indemnification obligation, pending the outcome of a provision allowing such assignment in a contract any actions to collect or arrangement with such Third Party)recover Insurance Proceeds; and
(ciii) such assignment does an Indemnitee need not prejudice legitimate business interests of the Buyer, provided that if the Buyer refuses attempt to assign the claim against such Third Party collect any Insurance Proceeds prior to the Seller on the basis set out in Clause 13.11.4(c), it shall provide the Seller with making an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination of the Warranty Indemnity Claim or receiving any Indemnity Claim (less Payment otherwise owed to it under this Agreement or any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount), will reduce the amount of such Claim by an equivalent amount; and
(b) if recovery of the Recovered Amount is delayed until after such Claim has been satisfied by the Seller, the Buyer shall repay to the Seller the amount so recovered (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount) up to the amount of such Claim satisfied by the SellerAncillary Agreement.
Appears in 1 contract
Samples: Separation and Distribution Agreement (Novartis Ag)
Recovery from Third Parties. Where6.1 Where the Seller has paid an amount under paragraph 2 for any Liability for Tax and the Buyer or Transgenomic Limited or any other member in the Buyer's Tax Group is or become entitled to recovers from some other person (including a Tax Authority but not the Buyer or Transgenomic Limited or any other member in the Buyer's Tax Group), following the Completion Dateany amount for any Liability for Tax, the Buyer shall or any Group Company is entitled to recover from any Third Party an amount (the “Recovery Amount”) in respect of any matter or event which gives rise to a Warranty Claim or an Indemnity Claim (including under any insurance policy):shall procure that Transgenomic Limited shall:
13.11.1 the Buyer shall not be restricted from pursuing that Warranty Claim or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller;
13.11.2 the Buyer shall 6.1.1 notify the Seller of such its entitlement as soon as reasonably practicable; and
6.1.2 if required by the Seller and, unless the disclosure of such entitlement would cause subject to the Buyer and Transgenomic Limited being indemnified and secured by the Seller against any Tax that may be suffered on receipt of that amount and any costs and expenses incurred in recovering that amount, take, or any Group Company procure that Transgenomic Limited takes, all reasonable steps to breach a confidentiality obligation;
13.11.3 if enforce that recovery against the Third Party person in question is an insurance company, the Buyer shall, or shall cause the relevant Group Company to, take all reasonable actions to recover the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep (keeping the Seller reasonably fully informed of the progress of such recoveryany action taken provided that Transgenomic Limited shall not be required to take any action under the paragraph 6.1 that, unless in the provision Buyer’s reasonable opinion, is likely to harm its, Transgenomic Limited’s or any member of such information would cause the Buyer’s Tax Group’s commercial or employment relationship (potential or actual) with that or any other person other than a Tax Authority or the professional advisers or auditors of Transgenomic Limited).
6.2 If the Buyer or Transgenomic Limited recovers any Group Company amount referred to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance companyparagraph 6.1, the Buyer shall assign its claim against such Third Party account to the Seller only if all of for the following conditions are satisfiedlesser of:
(a) the Seller pays and settles in full to the Buyer the 6.2.1 any amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned recovered (including by virtue any related interest or related repayment supplement) less any Tax suffered in respect of a provision allowing such assignment in a contract or arrangement with such Third Party); and
(c) such assignment does not prejudice legitimate business interests of the Buyer, provided that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination of the Warranty Claim or Indemnity Claim (less amount and any costs and expenses incurred in recovering that amount; and
6.2.2 the amount paid by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered Seller under paragraph 2 in respect of the Recovered Amount), will reduce the amount of such Claim by an equivalent amount; and
(b) if recovery of the Recovered Amount is delayed until after such Claim has been satisfied by the Seller, the Buyer shall repay to the Seller the amount so recovered (less any costs and expenses incurred by the Buyer or such Group Company Liability for Tax in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount) up to the amount of such Claim satisfied by the Sellerquestion.
Appears in 1 contract
Recovery from Third Parties. Where, following 7.1 Where the Completion DateBuyer, the Buyer Company or any Group Company a Subsidiary is or becomes entitled to recover from some other person (not being the Buyer, the Company or a Subsidiary or any Third Party an other company within the Buyer’s Tax Group), any amount (the “Recovery Amount”) in respect of any matter or event which gives rise to a Warranty Claim or an Indemnity Claim (including under any insurance policy):
13.11.1 Liability for Taxation, the Buyer shall not be restricted from pursuing or procure that Warranty Claim the Company or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller;relevant Subsidiary shall:
13.11.2 the Buyer shall (a) notify the Seller Warrantors of such its entitlement as soon as reasonably practicable, unless the disclosure of such entitlement would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.3 if the Third Party in question is an insurance company, the Buyer shall, or shall cause the relevant Group Company to, take all reasonable actions to recover the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep the Seller reasonably informed of the progress of such recovery, unless the provision of such information would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance company, the Buyer shall assign its claim against such Third Party to the Seller only if all of the following conditions are satisfied:
(a) the Seller pays and settles in full to the Buyer the amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third Party); and
(c) such assignment does not prejudice legitimate business interests of the Buyer, provided that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination of the Warranty Claim or Indemnity Claim (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount), will reduce the amount of such Claim by an equivalent amount; and
(b) if recovery of the Recovered Amount is delayed until after such Claim has been satisfied required by the SellerWarrantors and, subject to the Buyer, the Buyer shall repay to Company or the Seller relevant Subsidiary being indemnified by the Warrantors against any Tax that may be suffered on receipt of that amount so recovered (less and any costs and expenses incurred by in recovering that amount, take and procure that the Company or the relevant Subsidiary takes all reasonable steps to enforce that recovery against the person in question (keeping the Warrantors fully informed of the progress of any action taken) provided that the Buyer shall not be required to take any action pursuant to this paragraph 7.1 (other than an action against a person who has given Tax advice to the Company or such Group relevant Subsidiary on or before Completion), where it is reasonable for the Buyer to decline to do so and where that action, in the Buyer’s reasonable opinion, is likely to materially prejudice its or the Company’s or the relevant Subsidiary’s commercial or employment relationship (potential or actual) with that or any other person.
7.2 If the Buyer, or the Company or a Subsidiary recovers any amount referred to in recovering paragraph 7.1, the Recovered Amount and Buyer shall or shall procure that the Company or the relevant Subsidiary shall account to the Warrantors for the lesser of:
(a) any Taxation attributable to amount recovered (including any related interest or related repayment supplement) less any Tax suffered in respect of the Recovered Amount) up that amount and any costs and expenses incurred in recovering that amount (save to the extent that amount of such Claim satisfied has already been made good by the SellerWarrantors under paragraph 7.1(b)); and
(b) the amount payable by the Warrantors under paragraph 2 in respect of the Liability for Taxation in question.
Appears in 1 contract
Samples: Share Purchase Agreement (Bright Horizons Family Solutions Inc.)
Recovery from Third Parties. Where, following 8.1 In the Completion Date, event that the Sellers shall have made a payment to the Buyer or any Group Company is entitled to recover from any Third Party an amount (the “Recovery Amount”) in respect of any matter claim by the Buyer against the Sellers under this Schedule in respect of a Tax Liability or event which gives rise in respect of a breach of any of the Tax Warranties and any Buyer’s Group Undertaking is or may be entitled to recover or obtain a Warranty Claim or an Indemnity Claim payment in respect of that Tax Liability from any person (other than any Buyer’s Group Undertaking but including under any insurance policy):
13.11.1 Tax Authority) the Buyer shall not be restricted from pursuing procure that Warranty Claim or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller;
13.11.2 the Buyer shall notify the Seller of such entitlement as soon as reasonably practicable, unless the disclosure of such entitlement would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.3 if the Third Party in question is an insurance company, the Buyer shall, or shall cause the relevant Group Company toshall:
8.1.1 promptly notify the Sellers of all relevant details concerning such entitlement after such Group Company becomes aware of such entitlement;
8.1.2 subject to paragraph 8.2, take all such reasonable actions action as the Sellers shall request (at the Sellers’ expense) to recover the Recovery Amount from such insurance company enforce recovery under such Group Company’s insurance policy, and entitlement;
8.1.3 keep the Seller reasonably Sellers fully informed of the progress of any such action for the purpose of making recovery in accordance with this paragraph 8; and
8.1.4 within 5 Business Days of making recovery, unless pay to the provision Sellers an amount equal to the lesser of such information would cause (i) any sum referred to in paragraph 8.1 (including any interest or repayment supplement) which the Buyer actually recovers or any Buyer’s Group Undertaking actually recovers (whether or not pursuant to any action requested under paragraph 8.1.2) less any reasonable costs or expenses properly incurred by the Buyer or any Buyer’s Group Company to breach a confidentiality obligation;
13.11.4 if Undertaking (other than management costs and expenses) in respect of the Third Party matter in question is not an insurance company, the Buyer shall assign its claim against such Third Party to the Seller only if all of the following conditions are satisfied:
and (aii) the Seller pays and settles in full to the Buyer the amount of such Warranty Claim or such Indemnity Claim before any payment previously made by the Buyer so assigns its claim against such Third Party Sellers as referred to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third Party); and
(c) such assignment does not prejudice legitimate business interests of the Buyerparagraph 8.1, provided that if the Buyer refuses or any Buyer’s Group Undertaking is subsequently required to assign repay or otherwise found not to be entitled to retain any such recovery, the claim against such Third Party Sellers shall promptly repay to the Seller on Buyer any amount previously paid to the basis set out Sellers pursuant to this paragraph 8.1.4.
8.2 Neither the Buyer nor any Group Company shall be obliged to take action pursuant to paragraph 8.1.2 (i) in Clause 13.11.4(c)a case where such action is against a Tax Authority, it shall provide which would be likely to be materially prejudicial to the Seller with an explanation of what legitimate interests relationship of the Buyer may or the relevant Group Company with the relevant Tax Authority; or (ii) which involves conducting litigation beyond the first appellate body in the jurisdiction concerned unless leading counsel (with at least 10 years’ call) or reasonable equivalent outside the United Kingdom appointed by the Sellers and the Buyer, or failing agreement on such appointment, appointed by the Chair (or equivalent) of the local Bar Association, opines that such a course of action having regard to the merits of the case and any other relevant factors is reasonable PROVIDED THAT such course of action shall not for this purpose be prejudiced by reasonable unless such assignmentleading counsel opines that, on the merits, there is a reasonable basis for success.
13.11.5 in 8.3 Where the event the Buyer does not assign its claim against same right to repayment of a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination Tax gives rise to an entitlement of the Warranty Claim Sellers under two or Indemnity Claim more of paragraph 3.1.8(ii) (less as an exclusion to the liability of the Sellers under this Schedule or for breach of any costs and expenses incurred of the Tax Warranties), paragraph 7.5 (by the Buyer way of set-off or such Group Company in recovering the Recovered repayment of a Relevant Amount and any Taxation attributable this paragraph 8 (by way of third party 110 recovery), the Sellers shall not be entitled to recovery of or suffered credit for the same amount in respect of the Recovered Amount), will reduce the amount of such Claim by an equivalent amount; and
(b) if recovery of the Recovered Amount is delayed until after such Claim has been satisfied by the Seller, the Buyer shall repay right to the Seller the amount so recovered (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount) up to the amount of such Claim satisfied by the Sellerrepayment more than once.
Appears in 1 contract
Samples: Sale and Purchase Agreement
Recovery from Third Parties. Where9.1 Without prejudice to the Covenantors obligation to make any payment hereunder, following where the Completion Date, Purchaser or the Buyer Company or any Group Company the Subsidiary concerned is entitled to recover from any Third Party an amount (person other than the “Recovery Amount”) Purchaser or the Company or the Subsidiary concerned or any person connected with any of them a payment or relief in respect of any matter the Tax liability in question, the Purchaser shall procure that the Company or event which gives rise to a Warranty Claim or an Indemnity Claim (including under any insurance policy):
13.11.1 the Buyer Subsidiary shall not be restricted from pursuing that Warranty Claim or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller;
13.11.2 the Buyer shall notify the Seller of such entitlement as soon as reasonably practicable, unless practicable following it becoming aware of its entitlement notify the disclosure of such entitlement would cause Covenantors and if so required by the Buyer or any Group Company to breach a confidentiality obligation;
13.11.3 if the Third Party in question is an insurance company, the Buyer shall, or shall cause the relevant Group Company toCovenantors and at their expense, take all reasonable actions appropriate steps to recover enforce such recovery (keeping the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep the Seller reasonably Covenantors fully informed of the progress of such recovery, unless the provision of such information would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance company, the Buyer action taken) and shall assign its claim against such Third Party pay to the Seller only if all Covenantors an amount equal to the amount received or the amount that the Purchaser or the Company or the Subsidiary concerned will save by virtue of the following conditions are satisfied:
receipt of the relief (a) the Seller pays and settles in full to the Buyer less the amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third Party); and
(c) such assignment does not prejudice legitimate business interests of the Buyer, provided that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination of the Warranty Claim or Indemnity Claim (less any all costs and expenses incurred in obtaining such payment or relief, and net of any Tax payable on the amount received or that would have been payable but for the use or set off of any relief) to the extent that the payment to the Covenantors does not exceed the payment originally made by the Buyer Covenantors (net of any Tax suffered thereon), and to the extent that the right to such payment or relief is not prejudiced thereby.
9.2 Where the Purchaser or the Company or the Subsidiary concerned receives a relief as referred to in paragraph 9.1, a payment shall not be made to the Covenantors before the date on which the Tax that would have been payable but for the relief would have become recoverable by the appropriate Tax authority, and shall not be made to the extent that, but for the use of such Group relief, the Company in recovering or the Recovered Amount and any Taxation attributable to or suffered Subsidiary concerned would have had an actual Tax liability in respect of which the Recovered Amount), will reduce Purchaser would have been able to make a claim against the amount of such Claim by an equivalent amount; and
(b) if recovery of the Recovered Amount is delayed until after such Claim has been satisfied by the Seller, the Buyer shall repay to the Seller the amount so recovered (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount) up to the amount of such Claim satisfied by the SellerCovenantors under this Schedule.
Appears in 1 contract
Recovery from Third Parties. Where, following 7.1 Where the Completion Date, Warrantors have made a payment to the Buyer pursuant to paragraph 2 above or for breach of any Group of the Tax Warranties, in either case in full discharge of their liability thereunder and the Company is entitled to recover from any Third Party an amount other person (other than the “Recovery Amount”Buyer, any member of the Buyer’s Tax Group or any officer or employee of the Buyer or of a member of the Buyer’s Tax Group) any sum in respect of any the matter or event to which gives rise to a Warranty Claim or an Indemnity Claim (including under any insurance policy):
13.11.1 the Buyer shall not be restricted from pursuing that Warranty Claim or Indemnity Claim or any other Claim in relation to payment made by the same subject matter against the Seller;
13.11.2 Warrantors relates, the Buyer shall notify the Seller Representative of such the entitlement as soon as reasonably practicable, unless the disclosure practicable after it becomes aware of such entitlement would cause entitlement.
7.2 Provided that the Warrantors shall have first indemnified and secured the Buyer or any Group Company to breach a confidentiality obligation;
13.11.3 if the Third Party in question is an insurance company, the Buyer shall, or shall cause the relevant Group Company to, take all against its reasonable actions to recover the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep the Seller reasonably informed of the progress of such recovery, unless the provision of such information would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance company, the Buyer shall assign its claim against such Third Party to the Seller only if all of the following conditions are satisfied:
(a) the Seller pays properly incurred costs and settles in full to the Buyer the amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned expenses (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third Party); and
(c) such assignment does not prejudice legitimate business interests of the Buyer, provided any Tax that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) suffered on any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination of the Warranty Claim or Indemnity Claim (less relevant sums and including any costs and expenses of the Company) the Buyer shall take all reasonable steps to procure that the Company shall take such action as the Warrantors (acting unanimously) shall reasonably request to enforce such recovery as is mentioned in Paragraph 7.1 above against the third party in question and shall account to the Warrantors for any sums recovered but less any costs or expenses (including Tax) incurred or suffered by the Buyer or such Group Company in recovering and/or the Recovered Amount and any Taxation attributable Company, up to or suffered the amount previously paid by the Warrantors to the Buyer in respect of the Recovered Amountmatter in question (except for any sum paid in respect thereof under paragraph 2.1(k) above), will reduce ).
7.3 Neither the amount of such Claim by an equivalent amount; and
(b) if recovery of Buyer nor the Recovered Amount is delayed until after such Claim has been satisfied Company shall be required to take any step requested by the Seller, the Buyer shall repay Warrantors under this Paragraph 5 which it reasonably considers would prejudice its commercial position or employment relationship with any other person or would be prejudicial to the Seller the amount so recovered (less its Tax affairs or its dealings with any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount) up to the amount of such Claim satisfied by the SellerTax Authority.
Appears in 1 contract
Samples: Share Purchase Agreement (Wayside Technology Group, Inc.)
Recovery from Third Parties. Where, following 5.1 Where the Completion DatePurchaser, the Buyer Company or any Group Company its Subsidiary is or becomes entitled to recover from some other person (including for the avoidance of doubt a Taxation Authority) not being the Purchaser, the Company or its Subsidiary or any Third Party an other company within the Purchaser's Tax Group, any amount (the “Recovery Amount”) in respect of any matter a Liability for Taxation, which has resulted in a payment being made by the Vendor under the Tax Warranties or event which gives rise to a Warranty Claim the Tax Covenant, the Purchaser shall or an Indemnity Claim (including under any insurance policy):
13.11.1 shall procure that the Buyer shall not be restricted from pursuing that Warranty Claim Company or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller;
13.11.2 the Buyer shall its Subsidiary shall: o notify the Seller Vendor of such its entitlement as soon as reasonably practicable; and o if required by the Vendor and, unless subject to the disclosure Purchaser, the Company or its Subsidiary being indemnified by the Vendor against any Tax that may be suffered on receipt of such entitlement would cause that amount and any costs and expenses incurred in recovering that amount, take or procure that the Buyer Company or any Group Company its Subsidiary takes all reasonable steps to breach a confidentiality obligation;
13.11.3 if enforce that recovery against the Third Party person in question is an insurance company, (keeping the Buyer shall, or shall cause the relevant Group Company to, take all reasonable actions to recover the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep the Seller reasonably Vendor fully informed of the progress of such recoveryany action taken) save where in the Purchaser's reasonable opinion, unless to do so is likely to harm its or the provision of such information would cause the Buyer Company's or its Subsidiary's commercial relationship with that or any Group Company other person to breach a confidentiality obligation;an extent as great or greater than the amount which is sought to be recovered.
13.11.4 if 5.2 If the Third Party in question is not an insurance companyPurchaser, the Buyer Company or its Subsidiary recovers any amount referred to in paragraph 5.1, whether after taking any action requested by the Vendor or otherwise the Purchaser shall assign its claim against such Third Party as soon as reasonably practicable account to the Seller only if all of Vendor for the following conditions are satisfied:
(a) the Seller pays and settles in full to the Buyer the lesser of: o any amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller;
(b) the Buyer’s claim against such Third Party is capable of being assigned recovered (including by virtue any related interest or related repayment supplement) less any Tax suffered in respect of a provision allowing such assignment in a contract or arrangement with such Third Party); and
(c) such assignment does not prejudice legitimate business interests of the Buyer, provided that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4:
(a) any sum recovered by the Buyer from the Third Party (the “Recovered Amount”) before Determination of the Warranty Claim or Indemnity Claim (less amount and any costs and expenses incurred in recovering that amount (save to the extent that that amount has already been made good by the Buyer Vendor); and o the amount paid by the Vendor under paragraph 2 or such Group Company in recovering the Recovered Amount and under any Taxation attributable to or suffered Tax Warranty in respect of the Recovered Amount), will reduce the amount of such Claim by an equivalent amount; and
(b) if recovery of the Recovered Amount is delayed until after such Claim has been satisfied by the Seller, the Buyer shall repay to the Seller the amount so recovered (less any costs and expenses incurred by the Buyer or such Group Company Liability for Taxation in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount) up to the amount of such Claim satisfied by the Sellerquestion.
Appears in 1 contract
Recovery from Third Parties. Where, following the Completion Date, 10.1 If the Buyer or any Group the Company is is, within seven years from Completion, entitled to recover from any Third Party an amount person (other than the “Recovery Amount”Buyer or the Company) a sum in respect of any matter or event to which gives rise to a Warranty Tax Claim or an Indemnity Claim (including under a claim for breach of any insurance policy):
13.11.1 of the Buyer shall not be restricted from pursuing that Warranty Claim or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller;
13.11.2 the Buyer shall notify the Seller of such entitlement as soon as reasonably practicable, unless the disclosure of such entitlement would cause the Buyer or any Group Company to breach a confidentiality obligation;
13.11.3 if the Third Party in question is an insurance companyTax Warranties relates, the Buyer shall, or shall cause procure that the relevant Group Company toshall (as relevant):
(a) notify the Warrantors of that fact as soon as possible; and
(b) if the Warrantors indemnify the Buyer, take all or, as appropriate, the Company (to the Buyer's reasonable actions to recover satisfaction) against the Recovery Amount from such insurance company under such Group Company’s insurance policy, and keep the Seller reasonably informed reasonable costs of the progress of such recoveryBuyer or, unless as appropriate, the provision of such information would cause Company in connection with taking the Buyer or any Group Company to breach a confidentiality obligation;
13.11.4 if the Third Party in question is not an insurance companyfollowing action, the Buyer shall assign its claim or shall procure that the Company shall as soon as reasonably practicable take such action as may be reasonably requested by the Warrantors to enforce recovery against such Third Party to the Seller only if all of the following conditions are satisfied:
(a) the Seller pays and settles in full to that person provided however that the Buyer shall not be obliged to, or be obliged to procure that the Company shall, take any action that the Buyer reasonably believes is likely to materially adversely affect (as compared with the amount of such Warranty the Claim or such Indemnity Claim before for Tax) the future liability of the Buyer so assigns its claim against such Third Party or the Company to Tax (save where the Seller;
(b) Buyer is fully indemnified to the Buyer’s claim reasonable satisfaction against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract future liability) or arrangement with such Third Party); and
(c) such assignment does not prejudice legitimate the business or financial interests of either of them or of any person connected with any of them.
10.2 In the Buyer, provided event that if the Buyer refuses or the Company recovers any sum referred to assign in paragraph 10.1 of this Schedule, the claim against such Third Party Buyer shall pay to the Seller on Warrantors as soon as reasonably practicable the basis set out in Clause 13.11.4(c), it shall provide the Seller with an explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
13.11.5 in the event the Buyer does not assign its claim against a Third Party by operation of Clause 13.11.3 or Clause 13.11.4lesser of:
(a) any sum amount recovered by the Buyer from the Third Party (the “Recovered Amount”including any related interest or related repayment supplement) before Determination of the Warranty Claim or Indemnity Claim (less any Tax suffered in respect of that amount and any reasonable costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered in respect of the Recovered Amount), will reduce the amount of such Claim by an equivalent that amount; and
(b) if recovery of the Recovered Amount is delayed until after such Claim has been satisfied amount paid by the Seller, the Buyer shall repay to the Seller the amount so recovered (less any costs and expenses incurred by the Buyer or such Group Company in recovering the Recovered Amount and any Taxation attributable to or suffered Warrantors under this Schedule in respect of the Recovered Amount) up to the amount of such Claim satisfied by the SellerTax Liability in question.
Appears in 1 contract
Samples: Share Purchase Agreement
