Common use of Survival of Indemnity; Indemnification Procedures; Time Limits Clause in Contracts

Survival of Indemnity; Indemnification Procedures; Time Limits. (a) The indemnification obligations of the Indemnifying Parties pursuant to Section 7.2 for amounts up to the Escrow Amount shall apply only to those claims for indemnification as to which Parent has given written notice thereof pursuant to the terms of the Escrow Agreement on or prior to the Indemnity Termination Date; provided, however, that the foregoing shall not -------- ------- ---- limit the liability of any such Indemnifying Party for Damages incurred by Parent Indemnitees so long as Parent Indemnitees have made claims prior to the Indemnity Termination Date in respect to such Damages. The indemnification procedures set forth in the Escrow Agreement shall apply to all claims for Damages up the Escrow Amount resulting from a Parent Indemnifiable Claim. (b) The indemnification obligations of the Indemnifying Parties pursuant to Section 7.2 for amounts in excess of the Escrow Amount shall apply only to those claims for indemnification as to which Parent has given written notice thereof pursuant to the terms of the Indemnity Agreement on or prior to the Indemnification Termination Date; provided, -------- however, that the foregoing shall not limit the liability of such Indemnifying ------- ---- Party for Damages incurred by Parent Indemnitees so long as Parent Indemnitees have made claims prior to the Indemnity Termination Date in respect to such Damages. The indemnification procedures set forth in the Indemnity Agreement shall apply to all claims for Damages in excess of the Escrow Amount resulting from a Parent Indemnifiable Claim between Parent and such Indemnifying Party. In the event that claims are made by a Parent Indemnitee for Damages (i) under both the Escrow Agreement and the Indemnity Agreement or (ii) under the Indemnity Agreement against more than one Interestholder, which claims proceed to arbitration in accordance with the respective terms of the Escrow Agreement or the Indemnity Agreement, such claims shall be settled in a single arbitration to the extent feasible.

Survival of Indemnity; Indemnification Procedures; Time Limits. (a) The indemnification obligations of the Indemnifying Parties each Shareholder pursuant to Section 7.2 for amounts up to the Escrow Amount 8.2 shall apply only to those claims for indemnification as to for which Parent SmartForce has given written notice thereof pursuant on behalf of any Indemnitee, specifying the Indemnifiable Claim and the Damages alleged in reasonable detail (the "OFFICER'S CERTIFICATE") to the terms each of the Escrow Agreement Shareholders on or prior to the applicable Indemnity Termination Date; provided, however, that in the foregoing event that any Indemnitee shall not -------- ------- ---- limit the liability of any such Indemnifying Party for Damages incurred by Parent Indemnitees so long as Parent Indemnitees have made claims provide an Officer's Certificate pursuant to Section 8.4 prior to the applicable Indemnity Termination Date then such Indemnifiable Claim shall survive the Indemnity Termination Date in and the Shareholders shall remain liable for Damages after the applicable Indemnity Termination Date resulting from such Indemnifiable Claim until such time as the parties execute a Settlement Memorandum, receive an Arbitration Decision (as defined below) or receive the Final Judgment (as defined below) with respect to such Damages. Indemnifiable Claim.The parties hereto agree that the indemnification procedures set forth in clauses (b), (c), (d) and (e) of this Section 8.4 below and, in addition, the provisions contained in the Escrow Agreement Agreement, shall apply to all any claims for Damages up the Escrow Amount resulting from a Parent any Indemnifiable ClaimClaims. (b) The indemnification obligations If SmartForce delivers an Officer's Certificate in accordance with Section 8.4(a) on behalf of an Indemnitee, upon the expiration of thirty (30) calendar days after receipt of the Indemnifying Parties pursuant Officer's Certificate by the Shareholders, subject to the provisions of Section 7.2 for amounts 8.4(c) hereof and the other limitations set forth in excess this Article VIII or the Escrow Agreement, (i) the Escrow Agent shall promptly transfer, deliver and assign to Xxxxx Xxxxxxxx, as Trustee under the Trust Agreement, such number of Escrow Shares (rounded down to the nearest whole share) as is equal to the number resulting from dividing the amount of the Damages by an amount equal to the Average Closing Price per share and (ii) to the the extent that the Damages exceed the Escrow Amount ("EXCESS DAMAGES"), with respect to an Indemnifiable Claim under Section 8.2(a)(iii), the Management Shareholders shall apply only deliver to those claims for indemnification as such Indemnitees an amount equal to which Parent has given written notice thereof pursuant such Excess Damages in readily payable funds in the currency of the United States. To the extent that any Indemnifiable Claim shall be satisfied out of the Escrow, the Officer's Certificate shall also be delivered to the terms Escrow Agent in the manner specified in the Escrow Agreement. (c) For a period of thirty (30) calendar days after the receipt of such Officer's Certificate by Shareholders, Shareholders shall be entitled to review the Officer's Certificate and the basis of the Indemnity Agreement on Indemnifiable Claim. If Shareholders desire to dispute the Indemnifiable Claim or prior to the Indemnification Termination Date; provided, -------- however, that the foregoing shall not limit the liability of such Indemnifying ------- ---- Party for Damages incurred by Parent Indemnitees so long as Parent Indemnitees have made claims prior to the Indemnity Termination Date in respect to such Damages. The indemnification procedures set forth in the Indemnity Agreement Officer's Certificate, Shareholders may do so by providing written notice of such dispute to SmartForce, the Indemnitees and the Escrow Agent prior to the expiration of such thirty (30) day period, with the basis for such dispute set forth in reasonable detail (the "DISPUTE NOTICE"). If, within thirty (30) calendar days after the receipt of such Officer's Certificate by Shareholders (the "DISPUTE PERIOD"), SmartForce and the Indemnitees receive a Dispute Notice from Shareholders, neither the Escrow Agent nor the Shareholders shall apply be required to all claims for Damages transfer, deliver or assign to Trustee any Escrow Shares or pay any readily available funds in excess the currency of the Escrow Amount resulting from United States, as applicable, until either: (i) the Shareholders collectively execute a Parent Settlement Memorandum (as defined below) and, to the extent that such Indemnifiable Claim between Parent shall be satisfied out of the Escrow, such Settlement Memorandum shall be furnished to the Escrow Agent; or (ii) there is a final decision of an arbitration panel appointed in accordance with Section 8.4(d) below ("ARBITRATION DECISION"); or (iii) there is a final judgment of a court of competent jurisdiction after all appeals have been exhausted or expired ("FINAL JUDGMENT"). Upon the execution of the Settlement Memorandum or the Arbitration Decision or Final Judgment, the Escrow Agent and/or the Management Shareholders shall transfer, deliver or assign to the Trustee the Escrow Shares or pay readily available funds of the United States, as applicable, in accordance with such Settlement Memorandum, Arbitration Decision or Final Judgment. (d) If a Dispute Notice is received within the Dispute Period in accordance with Section 8.4(c) above, SmartForce, the Indemnitees and Shareholders shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such Indemnifying Partyclaims. In the event of resolution of such dispute, SmartForce, the Indemnitees and the Shareholders shall collectively execute a memorandum setting forth such resolution and, if applicable, the amount of any damages payable to the Indemnity or the Trustee, as applicable ("SETTLEMENT MEMORANDUM"). To the extent that claims are made by a Parent Indemnitee for Damages (i) under both any Indemnifiable Claim shall be satisfied out of the Escrow, such Settlement Memorandum shall also be furnished to the Escrow Agreement Agent. If SmartForce, the Indemnitees and the Indemnity Agreement Shareholders are unable to resolve such dispute within twenty (20) calendar days from SmartForce's and the Indemnitees' receipt of the Dispute Notice, then Shareholders, on the one hand, and SmartForce and the Indemnitees, on the other, may demand, by written notice to the other, that such issue shall be settled by binding arbitration held in San Mateo, California (an "ARBITRATION DEMAND") or such other venue mutually agreed to by the Indemnifying Parties and SmartForce; provided, however, that in the event the dispute involves an Indemnifiable Claim under Section 8.2(a)(iii), SmartForce and the Indemnitees shall have the right to bring any such claim before a state or federal court of competent jurisdiction residing in the County of Santa Xxxxx in the State of California in lieu of arbitration. (iie) under To the Indemnity Agreement against more than one Interestholderextent that an Arbitration Demand has been made, which all claims proceed to arbitration shall be settled by three arbitrators in accordance with the respective terms Commercial Arbitration Rules then in effect of the Escrow Agreement or American Arbitration Association (the Indemnity Agreement"ARBITRATION RULES"). The Shareholders, on the one hand, and SmartForce, on the other, shall each designate one (1) arbitrator within thirty (30) calendar days after the delivery of the Arbitration Demand. Such two (2) designated arbitrators shall then mutually agree upon and designate a third arbitrator. The arbitrators shall permit such claims discovery as they determine appropriate under the circumstances and shall resolve the dispute as expeditiously as practicable, and if reasonably practicable, within 120 days after the selection of the arbitrators. The final decision of a majority of the three arbitrators shall be settled in a single arbitration furnished to Shareholders, SmartForce, the Indemnitee and the Escrow Agent (to the extent feasibleapplicable) and shall constitute a conclusive determination of the issue in question, binding upon all parties and shall not be contested by any of them; provided, however that with respect to any Arbitration Decision rendered pursuant to a claim under paragraph 8.2(a)(iii) hereof that such Arbitration Decision shall be appealable. The non-prevailing party in any arbitration or litigation shall bear all of the fees and costs associated with any dispute hereunder and shall reimburse the prevailing party for all of its reasonable attorney's fees incurred in connection with any arbitration hereunder. The amount of the reasonable attorney's fees to be awarded to the prevailing party in any arbitration hereunder shall be determined by the arbitrators. (f) In order for any Indemnitee to be entitled to any indemnification provided for under this Agreement arising out of or involving a claim or demand made by any other person, firm, governmental authority, corporation or other third party that an Indemnitee reasonably believes may result in an Indemnifiable Claim (a "THIRD PARTY CLAIM"), the Indemnitee must provide written notice to the Shareholders, setting forth the specific facts and circumstances, in reasonable detail, of the Third Party Claim within forty-five (45) calender days of actual notice of the Third Party Claim ("THIRD PARTY CLAIM NOTICE"). Thereafter, the Indemnitee shall deliver to the Shareholders (each, an "INDEMNIFYING PARTY") as soon as practicable all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim; provided, however, that failure to give such Third Party Claim Notice and/or to deliver such copies on a reasonably timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure and in the event the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure then Indemnitee shall only be barred from seeking indemnification as to only that portion of the Third Party Claim for which the Indemnifying Party is actually and materially prejudiced. (g) If a Third Party Claim is made against the Indemnitee, the Indemnifying Party shall be entitled to participate in the defense thereof and, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. If the Indemnifying Party assumes such defense, then the Indemnitee shall have the right to participate in the defense thereof and to employ counsel and participate in its defense, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall appoint and direct lead counsel. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party chooses to defend any Third Party Claim, all the parties hereto shall cooperate in the defense or prosecution of such Third Party

Survival of Indemnity; Indemnification Procedures; Time Limits. (a) The indemnification obligations of the Indemnifying Parties each Shareholder pursuant to Section 7.2 8.2 for amounts up to the Escrow Amount shall apply only to those claims for indemnification as to which Parent CBT has given written notice thereof pursuant to the terms of the Escrow Agreement on or prior to the relevant Indemnity Termination Date; provided, however, provided that the foregoing shall not -------- ------- ---- limit the liability of any such Indemnifying Party Shareholder for Damages incurred by Parent CBT Indemnitees so long as Parent after the relevant Indemnity Termination Date that result from a CBT Indemnifiable Claim if CBT Indemnitees have made claims given written notice of such CBT Indemnifiable Claim prior to the relevant Indemnity Termination Date in respect to such DamagesDate. The CBT and each Shareholder agree that the indemnification procedures set forth in the Escrow Agreement shall apply to all claims for Damages up to the Escrow Amount resulting from a Parent CBT Indemnifiable Claim. Notwithstanding the foregoing, any claim for Damages in respect of any breach of or inaccuracy in any representation or warranties of the Shareholders relating to Tax made after the Two-Year Indemnity Termination Date shall be administered in accordance with paragraph (c) of this Section 8.4 regardless of whether the amount is less than or exceeds the Escrow Amount. (b) The indemnification obligations of the Indemnifying Parties each Shareholder pursuant to Section 7.2 8.2 for amounts in excess of the Escrow Amount shall apply only to those claims for indemnification as to which Parent CBT has given written notice thereof pursuant to the terms of the Indemnity Agreement paragraph (c) of this Section 8.4 on or prior to the Indemnification relevant Indemnity Termination Date; provided, -------- however, provided that the foregoing shall not limit the liability of such Indemnifying ------- ---- Party Shareholder for Damages incurred by Parent CBT Indemnitees so long as Parent after the relevant Indemnity Termination Date that result from a CBT Indemnifiable Claim if CBT Indemnitees have made claims given written notice of such CBT Indemnifiable Claim prior to the relevant Indemnity Termination Date in respect to such DamagesDate. The CBT and each Shareholder agree that the indemnification procedures set forth in the Indemnity Agreement paragraph (c) of this Section 8.4 shall apply to all claims for Damages in excess of the Escrow Amount resulting from a Parent CBT Indemnifiable Claim between Parent Claim. (c) If any CBT Indemnitee shall incur Damages that exceed the Escrow Amount, there shall be delivered to each Shareholder a certificate signed in good faith on behalf of CBT by an officer of CBT or by a member of the Special Committee (an "Officer's Certificate") stating that a CBT Indemnitee has paid, properly accrued, or reasonably anticipates that it will have to pay or accrue Damages in an amount specified in such Officer's Certificate, with the basis for such claim set forth in reasonable detail. Each Officer's Certificate shall be delivered to each Shareholder in the manner specified in Section 10.1 hereof. In the event CBT becomes aware of a third-party claim which CBT believes may result in a demand which exceeds the Escrow Amount, CBT shall, as soon as reasonably practicable, notify each Shareholder of such claim, and each Shareholder shall be entitled, at their individual expense, to participate in any defense of such Indemnifying Partyclaim. Delay in providing such notice shall not eliminate such claim except to the extent that the Shareholders are prejudiced thereby. CBT shall have the right in its sole discretion to settle any such claim; provided, however, that except with the consent of a given Shareholder, no settlement of any such claim with third-party claimants shall be determinative of the validity and quantum of any claim against such Shareholder. In the event that claims are made by a Parent Indemnitee for Damages (i) under both the Escrow Agreement and the Indemnity Agreement or (ii) under the Indemnity Agreement against more than one Interestholder, which claims proceed given Shareholder has consented to arbitration in accordance with the respective terms of the Escrow Agreement or the Indemnity Agreementany such settlement, such claims Shareholder shall be settled in a single arbitration have no power or authority to object to the extent feasibleamount of any claim by CBT against such Shareholder with respect to such settlement.

Survival of Indemnity; Indemnification Procedures; Time Limits. (a) The indemnification obligations of the Indemnifying Parties each Shareholder pursuant to Section 7.2 8.2 for amounts up to the Escrow Amount shall apply only to those claims for indemnification as to which Parent CBT has given written notice thereof pursuant to the terms of the Escrow Agreement on or prior to the relevant Indemnity Termination Date; provided, however, provided that the foregoing shall not -------- ------- ---- limit the liability of any such Indemnifying Party Shareholder for Damages incurred by Parent CBT Indemnitees so long as Parent after the relevant Indemnity Termination Date that result from a CBT Indemnifiable Claim if CBT Indemnitees have made claims given written notice of such CBT Indemnifiable Claim prior to the relevant Indemnity Termination Date in respect to such DamagesDate. The CBT and each Shareholder agree that the indemnification procedures set forth in the Escrow Agreement shall apply to all claims for Damages up to the Escrow Amount resulting from a Parent CBT Indemnifiable Claim. Notwithstanding the foregoing, any claim for Damages in respect of any breach of or inaccuracy in any representation or warranties of the Shareholders relating to Tax made after the Two-Year Indemnity Termination Date shall be administered in accordance with paragraph (c) of this Section 8.4 regardless of whether the amount is less than or exceeds the Escrow Amount. (b) The indemnification obligations of the Indemnifying Parties each Shareholder pursuant to Section 7.2 8.2 for amounts in excess of the Escrow Amount shall apply only to those claims for indemnification as to which Parent CBT has given written notice thereof pursuant to the terms of the Indemnity Agreement paragraph (c) of this Section 8.4 on or prior to the Indemnification relevant Indemnity Termination Date; provided, -------- however, provided that the foregoing shall not limit the liability of such Indemnifying ------- ---- Party Shareholder for Damages incurred by Parent CBT Indemnitees so long as Parent after the relevant Indemnity Termination Date that result from a CBT Indemnifiable Claim if CBT Indemnitees have made claims given written notice of such CBT Indemnifiable Claim prior to the relevant Indemnity Termination Date in respect to such DamagesDate. The CBT and each Shareholder agree that the indemnification procedures set forth in the Indemnity Agreement paragraph (c) of this Section 8.4 shall apply to all claims for Damages in excess of the Escrow Amount resulting from a Parent CBT Indemnifiable Claim between Parent Claim. (c) If any CBT Indemnitee shall incur Damages that exceed the Escrow Amount, there shall be delivered to each Shareholder a certificate signed in good faith on behalf of CBT by an officer of CBT or by a member of the Special Committee (an "Officer's Certificate") stating that a CBT Indemnitee has paid, --------------------- properly accrued, or reasonably anticipates that it will have to pay or accrue Damages in an amount specified in such Officer's Certificate, with the basis for such claim set forth in reasonable detail. Each Officer's Certificate shall be delivered to each Shareholder in the manner specified in Section 10.1 hereof. In the event CBT becomes aware of a third-party claim which CBT believes may result in a demand which exceeds the Escrow Amount, CBT shall, as soon as reasonably practicable, notify each Shareholder of such claim, and each Shareholder shall be entitled, at their individual expense, to participate in any defense of such Indemnifying Partyclaim. Delay in providing such notice shall not eliminate such claim except to the extent that the Shareholders are prejudiced thereby. CBT shall have the right in its sole discretion to settle any such claim; provided, however, that except with the consent of a given Shareholder, no settlement of any such claim with third-party claimants shall be determinative of the validity and quantum of any claim against such Shareholder. In the event that claims are made by a Parent Indemnitee for Damages (i) under both the Escrow Agreement and the Indemnity Agreement or (ii) under the Indemnity Agreement against more than one Interestholder, which claims proceed given Shareholder has consented to arbitration in accordance with the respective terms of the Escrow Agreement or the Indemnity Agreementany such settlement, such claims Shareholder shall be settled in a single arbitration have no power or authority to object to the extent feasibleamount of any claim by CBT against such Shareholder with respect to such settlement.