Claims Process. If there occurs an event which any Party (or any Purchaser Indemnified Party or any Seller Indemnified Party) asserts is an indemnifiable event pursuant to this ARTICLE IX, the Person seeking indemnification (the “Indemnitee”) promptly shall notify in writing the party obligated to provide indemnification pursuant to the terms hereof (the “Indemnitor”) of the occurrence of such event. If such event involves any claim or the commencement of any action or proceeding by a third Person (a “Third Party Claim”), the Indemnitee shall give the Indemnitor prompt written notice of such claim or the commencement of such action or proceeding (if known). The notice shall describe, in reasonable detail, the claim, the amount thereof if known and quantifiable, and the specific basis therefor. Any delay or failure by an Indemnitee to so notify the Indemnitor shall not relieve the Indemnitor of its indemnification obligations hereunder except to the extent (and only to such extent) such failure actually prejudices the Indemnitor. Except as otherwise provided in Section 7.03, the Indemnitor shall be entitled to assume and control the defense of, or settle, such Third Party Claim (with counsel approved by Indemnitee in writing, such approval not to be unreasonably withheld, conditioned, or delayed) at the Indemnitor’s expense by sending written notice to the Indemnitee of its election to do so within 30 Business Days after receiving written notice from the Indemnitee; provided, that notwithstanding the foregoing, the Indemnitor shall not have the right to defend or direct the defense of any such Third Party Claim (a) that is likely to result in Losses that will, in the good faith determination of the Indemnitee, materially exceed the amount of indemnification that the Indemnitor would be liable to pay to the Indemnitee hereunder, (b) that seeks solely an injunction or other equitable relief against the Indemnitee (and in connection with which no claims for monetary Losses are pursued), (c) that is a criminal, regulatory or statutory enforcement action brought by a Governmental Body, (d) that involves Taxes or (e) if the Indemnitor does not make reasonably adequate provision with respect to the defense, satisfaction and discharge of such Third Party Claim. The Indemnitee agrees to reasonably cooperate with the Indemnitor and its counsel in the defense against any such asserted claim, including by providing the Indemnitor (and selected counsel) with access to any documents, employees, witnesses and other persons or information in such Indemnitee’s access or control that are reasonably requested and may facilitate investigation or defense or settlement of such Third Party Claim. The Indemnitee shall have the right to participate in (but not control) the defense of such asserted claim with separate counsel, if it desires, at its own expense. Any settlement or compromise of such asserted claim by the Indemnitor shall require the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed; provided, that no such consent shall be required as long as it is solely a monetary settlement (that will be paid by the Indemnitor or its insurer in its entirety in accordance with the terms hereof) that provides a full and unconditional release of the Indemnitee with respect to such matter and does not contain an admission of liability or any continuing obligation on the part of the Indemnitee. Unless the Indemnitor assumes the defense of such claim within 30 Business Days after receiving written notice thereof from the Indemnitee, or fails to diligently prosecute the defense of such Third Party Claim after having assumed the defense thereof, the Indemnitee shall control the defense of such claim (with counsel of its choice and with the Indemnitor required to pay all reasonable costs and reasonable expenses incurred by the Indemnitee in connection with such matter) and the Indemnitor shall have the right to participate therein at its own expense; provided, that in the event the Indemnitee controls the defense of any such claim, the Indemnitee shall not be permitted to settle or compromise any such claim without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. In the event the Indemnitor assumes the defense of the claim, the Indemnitor will keep the Indemnitee reasonably informed of the progress of any such defense, compromise or settlement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Hall of Fame Resort & Entertainment Co)
Claims Process. If there occurs an event which any Party (On or any Purchaser Indemnified Party or any Seller Indemnified Party) asserts is an indemnifiable event pursuant to this ARTICLE IXbefore the Termination Date, the Person seeking indemnification (the “Indemnitee”) promptly shall notify in writing the party obligated to provide indemnification pursuant to the terms hereof (the “Indemnitor”) of the occurrence of such event. If such event involves any claim or the commencement of any action or proceeding by a third Person (a “Third Party Claim”), the Indemnitee shall give the Indemnitor prompt written notice of such claim or the commencement of such action or proceeding (if known). The notice shall describe, in reasonable detail, the claim, the amount thereof if known and quantifiable, and the specific basis therefor. Any delay or failure by an Indemnitee to so notify the Indemnitor shall not relieve the Indemnitor of its indemnification obligations hereunder except to the extent (and only to such extent) such failure actually prejudices the Indemnitor. Except as otherwise provided in Section 7.03, the Indemnitor Acquiror shall be entitled to assume deliver a certificate signed by an officer of Acquiror (an “Officer’s Certificate”) stating (i) Acquiror’s good faith belief that Damages exist (or could reasonably be expected to exist with respect to an identified matter) with respect to the indemnification obligations of Seller set forth in Section 9.1, and control specifying in reasonable detail the defense ofindividual items of such Damages included in the amount so stated, the date each such item was paid, or settleproperly accrued or arose, and the nature of the misrepresentation, breach of warranty, covenant or claim to which such Third Party Claim item is related or (with counsel approved by Indemnitee ii) that an Excess Adjustment Amount has been finally determined pursuant to Section 2.5(b), then in writingeach such case Acquiror shall, such approval not to be unreasonably withheld, conditioned, or delayed) at the Indemnitor’s expense by sending written notice subject to the Indemnitee provisions of its election this Section 9, be entitled to do so within 30 Business Days after receiving written notice retain out of the Holdback Amount cash having a value equal to such Damages or Excess Adjustment Amount, as applicable. Subject to the provisions of this Section 9, including the limitations on liability set out in Section 9.7, if Damages exceed the available Holdback Amount, Acquiror is hereby authorized at any time thereafter and from time to time, to the Indemnitee; providedfullest extent permitted by Law, that notwithstanding the foregoing, the Indemnitor shall not have the right to defend or direct the defense of any such Third Party Claim (a) that is likely reduce the Earn-Out Period Additional Consideration to result in Losses that will, in the good faith determination satisfy any indemnification obligation of the Indemnitee, materially exceed the amount of indemnification that the Indemnitor would be liable to pay to the Indemnitee hereunderSeller, (b) that seeks solely an injunction obtain repayment from Seller to the extent any Holdback Amount, Earn-Out Period Additional Consideration or other equitable relief against the Indemnitee (Initial Cash Consideration has already been paid to Seller and in connection with which no claims for monetary Losses are pursued), (c) that is obtain repayment from Seller in an amount equal to $19,999,981.21 (the original amount of the Note). If Seller shall so object in writing to any claim or claims by Acquiror made in any Officer’s Certificate, Acquiror shall have 30 days to respond in a criminalwritten statement to the objection of Seller. If after such 30 day period there remains a dispute as to any claims, regulatory or statutory enforcement action brought by a Governmental Body, (d) that involves Taxes or (e) if Seller and Acquiror shall attempt in good faith for an additional period of up to 45 days to agree upon the Indemnitor does not make reasonably adequate provision rights of the respective parties with respect to the defense, satisfaction and discharge each of such Third Party Claim. The Indemnitee agrees to reasonably cooperate with the Indemnitor and its counsel in the defense against any such asserted claim, including by providing the Indemnitor (and selected counsel) with access to any documents, employees, witnesses and other persons or information in such Indemnitee’s access or control that are reasonably requested and may facilitate investigation or defense or settlement of such Third Party Claim. The Indemnitee shall have the right to participate in (but not control) the defense of such asserted claim with separate counsel, if it desires, at its own expense. Any settlement or compromise of such asserted claim by the Indemnitor shall require the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed; provided, that no such consent shall be required as long as it is solely a monetary settlement (that will be paid by the Indemnitor or its insurer in its entirety in accordance with the terms hereof) that provides a full and unconditional release of the Indemnitee with respect to such matter and does not contain an admission of liability or any continuing obligation on the part of the Indemnitee. Unless the Indemnitor assumes the defense of such claim within 30 Business Days after receiving written notice thereof from the Indemnitee, or fails to diligently prosecute the defense of such Third Party Claim after having assumed the defense thereof, the Indemnitee shall control the defense of such claim (with counsel of its choice and with the Indemnitor required to pay all reasonable costs and reasonable expenses incurred by the Indemnitee in connection with such matter) and the Indemnitor shall have the right to participate therein at its own expense; provided, that in the event the Indemnitee controls the defense of any such claim, the Indemnitee shall not be permitted to settle or compromise any such claim without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. In the event the Indemnitor assumes the defense of the claim, the Indemnitor will keep the Indemnitee reasonably informed of the progress of any such defense, compromise or settlementclaims.
Appears in 1 contract
Samples: Share Purchase Agreement (Silicon Laboratories Inc)
Claims Process. If there occurs an event As soon as is reasonably practicable after any party entitled to indemnification pursuant to Section 6.1 above (the "INDEMNIFIED PARTY") becomes aware of any Claim that it has and which any Party (or any Purchaser is covered under Section 6.1 above, such Indemnified Party or any Seller Indemnified Party) asserts is an indemnifiable event pursuant to this ARTICLE IX, the Person seeking indemnification (the “Indemnitee”) promptly shall notify in writing the party obligated to provide indemnification pursuant to the terms hereof under such sections (the “Indemnitor”"INDEMNIFYING PARTY") of the occurrence of such event. If such event involves any claim or the commencement of any action or proceeding by a third Person (a “Third Party Claim”)in writing, the Indemnitee shall give the Indemnitor prompt written notice of such claim or the commencement of such action or proceeding (if known). The which notice shall describe, describe the Claim in reasonable detail, the claim, and shall indicate the amount thereof (estimated, if known and quantifiable, and necessary to the specific basis thereforextent feasible) of the Claim. Any delay or The failure by an Indemnitee of any Indemnified Party to so notify the Indemnitor promptly give any Indemnifying Party such notice shall not relieve the Indemnitor of its preclude such Indemnified Party from obtaining indemnification obligations hereunder under Section 6.1 above, except to the extent (that such Indemnified Party's failure has prejudiced the Indemnifying Party's rights or increased its liabilities and only obligations hereunder. In the event of a third party Claim which is subject to such extent) such failure actually prejudices the Indemnitor. Except as otherwise provided in indemnification under Section 7.036.1 above, the Indemnitor Indemnifying Party shall promptly defend such Claim by counsel of its own choosing, subject to the approval of the Indemnified Party, which approval shall not unreasonably be entitled to assume and control the defense of, or settle, such Third Party Claim (with counsel approved by Indemnitee in writing, such approval not to be unreasonably withheld, conditioned, or delayed) at and the Indemnitor’s expense by sending written notice to the Indemnitee of its election to do so within 30 Business Days after receiving written notice from the Indemnitee; provided, that notwithstanding the foregoing, the Indemnitor Indemnified Party shall not have the right to defend or direct the defense of any such Third Party Claim (a) that is likely to result in Losses that will, in the good faith determination of the Indemnitee, materially exceed the amount of indemnification that the Indemnitor would be liable to pay to the Indemnitee hereunder, (b) that seeks solely an injunction or other equitable relief against the Indemnitee (and in connection with which no claims for monetary Losses are pursued), (c) that is a criminal, regulatory or statutory enforcement action brought by a Governmental Body, (d) that involves Taxes or (e) if the Indemnitor does not make reasonably adequate provision with respect to the defense, satisfaction and discharge of such Third Party Claim. The Indemnitee agrees to reasonably cooperate with the Indemnitor and its counsel Indemnifying Party in the defense against any such asserted claim, including by providing the Indemnitor (and selected counsel) with access to any documents, employees, witnesses and other persons or information in such Indemnitee’s access or control that are reasonably requested and may facilitate investigation or defense or settlement of such Third Party Claim. The Indemnitee shall have the right to participate in (but not control) the defense of such asserted claim Claim including the settlement of the matter on the basis stipulated by the Indemnifying Party (with separate counsel, if it desires, at its own expensethe Indemnifying Party being responsible for all costs and expenses of such settlement). Any such settlement or compromise of such asserted claim by the Indemnitor shall require the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed; provided, that no such consent shall be required as long as it is solely include a monetary settlement (that will be paid by the Indemnitor or its insurer in its entirety in accordance with the terms hereof) that provides a full complete and unconditional release of the Indemnitee with respect Indemnified Party from the Claim. If the Indemnifying Party within a reasonable time after notice of a Claim fails to defend the Indemnified Party, or if the Indemnifying Party is, or at any time during the Term of this Agreement was, an Impermissible Investor, the Indemnified Party shall be entitled to undertake the defense, compromise, or settlement of such matter Claim at the expense of and does not contain an admission of liability or any continuing obligation on for the part account and risk of the Indemnitee. Unless the Indemnitor assumes the defense of such claim within 30 Business Days after receiving written notice thereof from the Indemnitee, or fails to diligently prosecute the defense of such Third Party Claim after having assumed the defense thereof, the Indemnitee shall control the defense of such claim (with counsel of its choice and with the Indemnitor required to pay all reasonable costs and reasonable expenses incurred by the Indemnitee in connection with such matter) and the Indemnitor shall have the right to participate therein at its own expense; provided, that in the event the Indemnitee controls the defense of any such claim, the Indemnitee shall not be permitted to settle or compromise any such claim without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. In the event the Indemnitor assumes the defense of the claim, the Indemnitor will keep the Indemnitee reasonably informed of the progress of any such defense, compromise or settlementIndemnifying Party.
Appears in 1 contract
Claims Process. If there occurs an event which any Party (or any Purchaser Indemnified Party or any Seller Indemnified Party) asserts is an indemnifiable event pursuant to this ARTICLE IX, the Person seeking indemnification (the “Indemnitee”) promptly shall notify in writing the party obligated to provide indemnification pursuant to the terms hereof (the “Indemnitor”) Promptly after becoming aware of the occurrence existence of such event. If such event involves any claim potential Damages or the commencement of any action or proceeding by a third Person (a “Third Third-Party Claim”), the Indemnitee shall give the Indemnitor prompt written notice of such claim or the commencement of such action or proceeding (if known). The notice shall describe, in reasonable detail, the claim, the amount thereof if known and quantifiable, and the specific basis therefor. Any delay or failure by an Indemnitee to so notify the Indemnitor shall not relieve the Indemnitor of its indemnification obligations hereunder except to the extent (and only to such extent) such failure actually prejudices the Indemnitor. Except as otherwise provided in Section 7.03, the Indemnitor Purchaser shall be entitled to assume deliver to Seller a certificate signed by an officer of Purchaser (an “Officer’s Certificate”) stating Purchaser’s good faith belief that Damages exist (or are reasonably expected to exist with respect to an identified matter) or that there has been an assertion in writing against any Purchaser Indemnified Person of a claim, demand, suit, action, arbitration, investigation, inquiry or proceeding brought by a third party against any Purchaser Indemnified Person (in each such case, a “Third-Party Claim”) that if successfully prosecuted, would give rise to the indemnification obligations of the Indemnifying Parties set forth in Section 6.1, and control specifying in reasonable detail the defense ofindividual items of such Damages included in the amount so stated, the date each such item was paid, or settleproperly accrued or arose, and the nature of the misrepresentation, breach of warranty, covenant or claim to which such Third Party Claim (with counsel approved by Indemnitee in writing, such approval not to be unreasonably withheld, conditioned, or delayed) at the Indemnitor’s expense by sending written notice to the Indemnitee of its election to do so within 30 Business Days after receiving written notice from the Indemnitee; provided, that notwithstanding item is related. Notwithstanding the foregoing, no delay on the Indemnitor part of Purchaser in giving the Indemnifying Parties an Officer’s Certificate shall not have limit or reduce the Indemnifying Party’s right to defend or direct indemnity hereunder, nor relieve the defense Indemnifying Party from any of any its obligations, unless an Indemnifying Party is actually materially prejudiced thereby. Upon receipt of an Officer’s Certificate, Seller will deliver an amount as necessary to satisfy and pay (if and when it is determined that such Third Party Claim (aamount is owed) that is likely to result in Losses that will, in the good faith determination of the Indemnitee, materially exceed the amount of indemnification that the Indemnitor would be liable to pay claim as stated in the Officer’s Certificate. Notwithstanding anything in this Agreement to the Indemnitee hereundercontrary, Purchaser Indemnified Persons shall not be entitled to recover under this Agreement unless an Officer’s Certificate has been delivered to Seller on or before the applicable survival period for such claim provided in Section 6.4. If Seller shall object in writing to any claim or claims by Purchaser made in any Officer’s Certificate, Purchaser shall have thirty (b30) days to respond in a written statement to the objection of Seller. If after such thirty (30) day period there remains a dispute as to any claims, Seller and Purchaser shall attempt in good faith for an additional period of up to forty-five (45) days to agree upon the rights of the respective parties with respect to each of such claims, provided that seeks solely an injunction if no agreement is reached, no amounts shall be owed by the Indemnifying Parties or other equitable relief against recoverable by the Indemnitee (and in connection with which no claims for monetary Losses are pursued)Purchaser Indemnified Persons until a final decision, (c) that is a criminal, regulatory judgment or statutory enforcement action brought by a Governmental Body, (d) that involves Taxes or (e) if the Indemnitor does not make reasonably adequate provision award has been rendered with respect to the defense, satisfaction and discharge of such Third Party Claim. The Indemnitee agrees to reasonably cooperate with the Indemnitor and its counsel indemnification matters set forth in the defense against any such asserted claim, Officer’s Certificate (including by providing a declaratory or similar judgment that the Indemnitor (and selected counsel) with access Purchaser Identified Persons are entitled to any documents, employees, witnesses and other persons or information in such Indemnitee’s access or control that are reasonably requested and may facilitate investigation or defense or settlement of such Third Party Claim. The Indemnitee shall have the right to participate in (but not control) the defense of such asserted claim with separate counsel, if it desires, at its own expense. Any settlement or compromise of such asserted claim by the Indemnitor shall require the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed; provided, that no such consent shall be required as long as it is solely a monetary settlement (that will be paid by the Indemnitor or its insurer in its entirety in accordance with the terms hereof) that provides a full and unconditional release of the Indemnitee with respect to such matter and does not contain an admission of liability or any continuing obligation on the part of the Indemnitee. Unless the Indemnitor assumes the defense of such claim within 30 Business Days after receiving written notice thereof from the Indemnitee, or fails to diligently prosecute the defense of such Third Party Claim after having assumed the defense thereof, the Indemnitee shall control the defense of such claim (with counsel of its choice and with the Indemnitor required to pay all reasonable costs and reasonable expenses incurred by the Indemnitee in connection with such matterindemnification) and the Indemnitor shall have the right time in which to participate therein at its own expense; provided, that in the event the Indemnitee controls the defense of any such claim, the Indemnitee shall not be permitted to settle or compromise any such claim without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. In the event the Indemnitor assumes the defense of the claim, the Indemnitor will keep the Indemnitee reasonably informed of the progress of any such defense, compromise or settlementappeal therefrom has expired.
Appears in 1 contract
Claims Process. If there occurs an event which any Party (or any Purchaser Indemnified Party or any Seller Indemnified Party) asserts is an indemnifiable event pursuant to this ARTICLE IX, The Vendor and the Person Corporation shall bring a motion in the CCAA Court seeking indemnification approval of a claims process (the “IndemniteeClaims Process”) promptly shall notify in writing form and substance customary for claims processes in CCAA proceedings and otherwise satisfactory to the party obligated to provide indemnification Purchaser, acting reasonably, pursuant to which all claims against the terms hereof (Vendor and the “Indemnitor”) of Corporation and their respective directors and officers shall be solicited and determined, including any claims that may exist in relation to the occurrence of such event. If such event involves any claim or the commencement of any action or proceeding by a third Person (a “Third Party Claim”), the Indemnitee shall give the Indemnitor prompt written notice of such claim or the commencement of such action or proceeding (if known)Specified Amounts. The notice Claims Process shall describe, include a claims bar date that is before the Closing Date. A claim related to a Specified Amount shall be included in reasonable detail, Indebtedness for the claim, purposes of calculating the amount thereof if known and quantifiable, Estimated Closing Indebtedness and the specific basis therefor. Any delay or failure by an Indemnitee to so notify the Indemnitor shall not relieve the Indemnitor of its indemnification obligations hereunder except to the extent Closing Indebtedness unless: (and only to such extentA) such failure actually prejudices the Indemnitor. Except as otherwise provided in Section 7.03, the Indemnitor shall be entitled to assume and control the defense of, or settle, such Third Party Claim (with counsel approved by Indemnitee in writing, such approval not to be unreasonably withheld, conditioned, or delayed) at the Indemnitor’s expense by sending written notice to the Indemnitee of its election to do so within 30 Business Days after receiving written notice from the Indemnitee; provided, that notwithstanding the foregoing, the Indemnitor shall not have the right to defend or direct the defense of any such Third Party Claim (a) that Specified Amount is likely to result in Losses that will, in the good faith determination of the Indemnitee, materially exceed the amount of indemnification that the Indemnitor would be liable to pay to the Indemnitee hereunder, (b) that seeks solely an injunction or other equitable relief against the Indemnitee (and in connection with which no claims for monetary Losses are pursued), (c) that is a criminal, regulatory or statutory enforcement action brought by a Governmental Body, (d) that involves Taxes or (e) if the Indemnitor does not make reasonably adequate provision with respect to the defense, satisfaction and discharge of such Third Party Claim. The Indemnitee agrees to reasonably cooperate with the Indemnitor and its counsel in the defense against any such asserted claim, including by providing the Indemnitor (and selected counsel) with access to any documents, employees, witnesses and other persons or information in such Indemnitee’s access or control that are reasonably requested and may facilitate investigation or defense or settlement of such Third Party Claim. The Indemnitee shall have the right to participate in (but not control) the defense of such asserted claim with separate counsel, if it desires, at its own expense. Any settlement or compromise of such asserted claim by the Indemnitor shall require the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed; provided, that no such consent shall be required as long as it is solely a monetary settlement (that will be paid by the Indemnitor Corporation or its insurer (B) (i) the Claims Process is approved by the CCAA Court and the Aralez Canada CCAA Termination Order is entered; and (ii) either (x) no claim in its entirety relation to such Specified Amount is filed in accordance with the terms hereofClaims Process or otherwise permitted to be filed by the CCAA Court, or (y) that provides to the extent a claim in relation to a Specified Amount is filed in accordance with the Claims Process or otherwise permitted to be filed by the CCAA Court, such claim has been disallowed in full and unconditional release of the Indemnitee with respect to such matter and does not contain an admission of liability or without any continuing obligation further ability on the part of the Indemnitee. Unless claimant to dispute, appeal or otherwise contest such disallowance, or (z) to the Indemnitor assumes extent a claim in relation to a Specified Amount is filed in accordance with the defense Claims Process or otherwise permitted to be filed by the CCAA Court and is disputed, under appeal or otherwise contested as at the Closing, in which case the full amount of the claim shall be included in Estimated Closing Indebtedness and Closing Indebtedness unless such claim is reduced as a result of such dispute, appeal or contestation prior to the date on which the Adjustment Amount is finally determined (the “Adjustment Date”) in which case the amount included in Closing Indebtedness in respect of such claim within 30 Business Days after receiving written notice thereof from the Indemnitee, or fails to diligently prosecute the defense of shall be such Third Party Claim after having assumed the defense thereof, the Indemnitee shall control the defense of such claim (with counsel of its choice and with the Indemnitor required to pay all reasonable costs and reasonable expenses incurred by the Indemnitee in connection with such matter) and the Indemnitor shall have the right to participate therein at its own expensereduced amount; provided, provided that in the event that following the Indemnitee controls Adjustment Date any amount of a claim related to a Specified Amount included in the defense of any such claimClosing Indebtedness pursuant to this clause (z) is finally determined to be disallowed, the Indemnitee Purchaser shall not be permitted remit such disallowed amount to settle or compromise any the Monitor on behalf of the Vendor within five (5) Business Days of such determination. Notwithstanding the foregoing, if a claim is allowed for an amount that is greater than nil but less than the applicable amount filed with respect to such claim without in the prior written consent Claims Process, the Indebtedness shall be adjusted in the amount of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayedallowed claim. In the event that any claims in relation to a Specified Amount are determined to be owing by the Indemnitor assumes Corporation pursuant to the defense of the claimClaims Process, the Indemnitor will keep Purchaser shall cause the Indemnitee reasonably informed of Corporation to pay such amounts following the progress of any such defense, compromise or settlementClosing to the relevant party as determined by the Claims Process.
Appears in 1 contract
Samples: Share Purchase Agreement (Aralez Pharmaceuticals Inc.)
Claims Process. If there occurs an event which any Party (or any Purchaser a) Each Indemnified Party or any Seller Indemnified Party) asserts is an indemnifiable event pursuant to under this ARTICLE IXSection 9 shall, promptly after the Person seeking indemnification (the “Indemnitee”) promptly shall notify in writing the party obligated to provide indemnification pursuant to the terms hereof (the “Indemnitor”) receipt of the occurrence notice of such event. If such event involves any claim or the commencement of any action or proceeding by a third Person (a “Third Claim against such Indemnified Party Claim”)in respect of which indemnity may be sought from the Indemnifying Party under this Section 9, notify the Indemnitee shall give the Indemnitor prompt written notice Indemnifying Party in writing of such claim or the commencement of such action or proceeding (if known)thereof. The notice shall describe, in reasonable detail, the claim, the amount thereof if known and quantifiable, and the specific basis therefor. Any delay or failure by an Indemnitee omission of any Indemnified Party to so notify the Indemnitor Indemnifying Party of any such Claim shall not relieve the Indemnitor of its indemnification obligations hereunder except Indemnifying Party from any liability which it may have to such Indemnified Party unless, and only to the extent (that, such omission materially and only to such extent) such failure actually adversely prejudices the IndemnitorIndemnifying Party and results in the Indemnifying Party’s forfeiture of substantive rights or defenses. Except as otherwise provided in Section 7.03In case any such Claim shall be brought against any Indemnified Party, and upon its notification to the Indemnifying Party of the commencement thereof, the Indemnitor Indemnifying Party shall be entitled to assume and control the defense ofthereof at its own expense, or settle, such Third Party Claim (with counsel approved by Indemnitee satisfactory to such Indemnified Party in writing, such approval not to be unreasonably withheld, conditioned, or delayed) at the Indemnitor’s expense by sending written notice to the Indemnitee of its election to do so within 30 Business Days after receiving written notice from the Indemniteereasonable judgment; provided, however, that notwithstanding the foregoing, the Indemnitor shall not have the right to defend or direct the defense of any such Third Indemnified Party Claim (a) that is likely to result in Losses that will, in the good faith determination of the Indemnitee, materially exceed the amount of indemnification that the Indemnitor would be liable to pay to the Indemnitee hereunder, (b) that seeks solely an injunction or other equitable relief against the Indemnitee (and in connection with which no claims for monetary Losses are pursued), (c) that is a criminal, regulatory or statutory enforcement action brought by a Governmental Body, (d) that involves Taxes or (e) if the Indemnitor does not make reasonably adequate provision with respect to the defense, satisfaction and discharge of such Third Party Claim. The Indemnitee agrees to reasonably cooperate with the Indemnitor and its counsel in the defense against any such asserted claim, including by providing the Indemnitor (and selected counsel) with access to any documents, employees, witnesses and other persons or information in such Indemnitee’s access or control that are reasonably requested and may facilitate investigation or defense or settlement of such Third Party Claim. The Indemnitee shall have the right to participate in (but not control) the defense of such asserted claim with separate counsel, if it desiresmay, at its own expense. Any settlement or compromise , retain separate counsel to participate in such defense at its own expense and further provided that prior to assuming control of such asserted claim by defense, the Indemnitor shall require Indemnifying Party must acknowledge that it would have an indemnity obligation for the prior written consent of Damages resulting from such Claim. Notwithstanding the Indemniteeforegoing, which consent the Indemnifying Party shall not be unreasonably withheld, conditioned or delayed; provided, that no such consent shall be required as long as it is solely a monetary settlement (that will be paid by the Indemnitor or its insurer in its entirety in accordance with the terms hereof) that provides a full and unconditional release of the Indemnitee with respect entitled to such matter and does not contain an admission of liability or any continuing obligation on the part of the Indemnitee. Unless the Indemnitor assumes the defense of such claim within 30 Business Days after receiving written notice thereof from the Indemnitee, or fails to diligently prosecute the defense of such Third Party Claim after having assumed the defense thereof, the Indemnitee shall control the defense of such claim (with counsel of its choice and with the Indemnitor required to pay all reasonable costs and reasonable expenses incurred by the Indemnitee in connection with such matter) and the Indemnitor shall have the right to participate therein at its own expense; provided, that in the event the Indemnitee controls assume the defense of any such claim, the Indemnitee shall not be permitted to settle or compromise any such claim Claim without the prior written consent of the IndemnitorIndemnified Party if (i) the Claim relates to or arises in connection with any criminal proceeding, which consent shall not action, indictment, allegation or investigation, (ii) the Indemnified Party reasonably believes an adverse determination with respect to the Claim would be unreasonably withheld, conditioned detrimental to the reputation or delayed. In the event the Indemnitor assumes the defense future business prospects of the claimIndemnified Party or any of its Affiliates, or (iii) the Indemnitor will keep Claim seeks an injunction or equitable relief against the Indemnitee reasonably informed Indemnified Party or any of the progress of any such defense, compromise or settlementits Affiliates.
Appears in 1 contract
Samples: Business Cooperation Agreement
Claims Process. If there occurs an event which any Party (On or any Purchaser Indemnified Party or any Seller Indemnified Party) asserts is an indemnifiable event pursuant to this ARTICLE IXbefore the Termination Date, the Person seeking indemnification (the “Indemnitee”) promptly shall notify in writing the party obligated to provide indemnification pursuant to the terms hereof (the “Indemnitor”) after becoming aware of the occurrence existence of such event. If such event involves any claim potential Damages or the commencement of any action or proceeding by a third Person (a “Third Third-Party Claim”), the Indemnitee shall give the Indemnitor prompt written notice of such claim or the commencement of such action or proceeding (if known). The notice shall describe, in reasonable detail, the claim, the amount thereof if known and quantifiable, and the specific basis therefor. Any delay or failure by an Indemnitee to so notify the Indemnitor shall not relieve the Indemnitor of its indemnification obligations hereunder except to the extent (and only to such extent) such failure actually prejudices the Indemnitor. Except as otherwise provided in Section 7.03, the Indemnitor Purchaser shall be entitled to assume deliver to the Escrow Agent and control Seller a certificate signed by an officer of Purchaser (an “Officer’s Certificate”) stating Purchaser’s good faith belief that Damages exist (or are reasonably expected to exist with respect to an identified matter) or that there has been an assertion in writing against any Purchaser Indemnified Person of a claim, demand, suit, action, arbitration, investigation, inquiry or proceeding brought by a third party against any Purchaser Indemnified Person (in each such case, a “Third-Party Claim”) that if successfully prosecuted, would give rise to the defense ofindemnification obligations of the Indemnifying Parties set forth in Section 8.1, and specifying in reasonable detail the individual items of such Damages included in the amount so stated, the date each such item was paid, or settleproperly accrued or arose, and the nature of the misrepresentation, breach of warranty, covenant or claim to which such Third Party Claim (with counsel approved by Indemnitee in writing, such approval not to be unreasonably withheld, conditioned, or delayed) at the Indemnitor’s expense by sending written notice to the Indemnitee of its election to do so within 30 Business Days after receiving written notice from the Indemnitee; provided, that notwithstanding item is related. Notwithstanding the foregoing, if the Indemnitor Officer’s Certificate is given on or prior to the Termination Date, no delay on the part of the Purchaser in giving the Indemnifying Parties an Officer’s Certificate shall not have limit or reduce the Indemnifying Party’s right to defend or direct indemnity hereunder, nor relieve the defense Indemnifying Party from any of any such Third its obligations, unless an Indemnifying Party Claim (a) that is likely to result in Losses that actually materially prejudiced thereby. Upon receipt of an Officer’s Certificate, the Escrow Agent will, as more particularly provided in the good faith determination Escrow Agreement, segregate from the Escrow Funds into a separate account (the “Pending Claims Account”) a portion of the Indemnitee, materially exceed Escrow Amount as necessary to satisfy and pay (if and when it is determined that such amount is owed) the amount of indemnification that the Indemnitor would be liable to pay to claim as stated in the Indemnitee hereunder, (b) that seeks solely an injunction or other equitable relief against the Indemnitee (and in connection with which no claims for monetary Losses are pursued), (c) that is a criminal, regulatory or statutory enforcement action brought by a Governmental Body, (d) that involves Taxes or (e) if the Indemnitor does not make reasonably adequate provision with respect to the defense, satisfaction and discharge of such Third Party ClaimOfficer’s Certificate. The Indemnitee agrees to reasonably cooperate with Escrow Agent will distribute the Indemnitor and its counsel in the defense against any such asserted claim, including by providing the Indemnitor (and selected counsel) with access to any documents, employees, witnesses and other persons or information in such Indemnitee’s access or control that are reasonably requested and may facilitate investigation or defense or settlement of such Third Party Claim. The Indemnitee shall have the right to participate in (but not control) the defense of such asserted claim with separate counsel, if it desires, at its own expense. Any settlement or compromise of such asserted claim by the Indemnitor shall require the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed; provided, that no such consent shall be required as long as it is solely a monetary settlement (that will be paid by the Indemnitor or its insurer in its entirety Escrow Funds in accordance with the terms hereof) that provides a full and unconditional release of the Indemnitee Escrow Agreement. Subject to the provisions of this Section 8, if Damages exceed the available Escrow Funds, Purchaser is hereby authorized at any time thereafter and from time to time, to the fullest extent permitted by Law, to obtain repayment from the Equityholders to the extent any Escrow Funds or Cash Consideration has already been paid to the Equityholders (and the Equityholders shall promptly facilitate each of the foregoing remedies). Notwithstanding anything in this Agreement to the contrary, Purchaser Indemnified Persons shall not be entitled to recover under this Agreement unless an Officer’s Certificate has been delivered to Seller on or before the applicable survival period for such claim provided in Section 8.1. If Seller shall object in writing to any claim or claims by Purchaser made in any Officer’s Certificate, Purchaser shall have 30 days to respond in a written statement to the objection of Seller. If after such 30 day period there remains a dispute as to any claims, Seller and Purchaser shall attempt in good faith for an additional period of up to 45 days to agree upon the rights of the respective parties with respect to such matter and does not contain an admission of liability or any continuing obligation on the part of the Indemnitee. Unless the Indemnitor assumes the defense each of such claim within 30 Business Days after receiving written notice thereof from the Indemniteeclaims, or fails to diligently prosecute the defense of such Third Party Claim after having assumed the defense thereofprovided that if no agreement is reached, the Indemnitee no amounts shall control the defense of such claim (with counsel of its choice and with the Indemnitor required to pay all reasonable costs and reasonable expenses incurred be owed by the Indemnitee Indemnifying Parties or recoverable by the Purchaser Indemnified Persons until a final decision, judgment or award has been rendered with respect to the indemnification matters set forth in connection with such matterthe Officer’s Certificate (including a declaratory or similar judgment that the Purchaser Identified Persons are entitled to indemnification) and the Indemnitor shall have the right time in which to participate therein at its own expense; provided, that in the event the Indemnitee controls the defense of any such claim, the Indemnitee shall not be permitted to settle or compromise any such claim without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. In the event the Indemnitor assumes the defense of the claim, the Indemnitor will keep the Indemnitee reasonably informed of the progress of any such defense, compromise or settlementappeal therefrom has expired.
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Samples: Asset Purchase Agreement (Silicon Laboratories Inc.)
Claims Process. If there occurs As an event which any Party (or any Purchaser Indemnified Party or any Seller Indemnified Party) asserts is an indemnifiable event pursuant express condition precedent to the indemnification obligations set forth in this ARTICLE IXSection 10, the Person party or related entity seeking indemnification (the “IndemniteeIndemnified Party”) promptly shall notify in writing will provide the party obligated to provide from which indemnification pursuant to the terms hereof is sought (the “IndemnitorIndemnifying Party”) of the occurrence of such event. If such event involves any claim or the commencement of any action or proceeding by a third Person (a “Third Party Claim”), the Indemnitee shall give the Indemnitor with prompt written notice of the existence of any such claim or Claim; the commencement of such action or proceeding (if known). The notice shall describe, in reasonable detail, the claim, the amount thereof if known and quantifiable, and the specific basis therefor. Any delay or failure by an Indemnitee to so notify the Indemnitor shall not relieve the Indemnitor of its indemnification obligations hereunder except to the extent (and only to such extent) such failure actually prejudices the Indemnitor. Except as otherwise provided in Section 7.03, the Indemnitor Indemnified Party shall be entitled allowed the right to assume and control the defense of, or settle, such Third Party of the Claim (with counsel approved by Indemnitee in writing, and to settle or compromise the Claims provided such approval settlement does not to be unreasonably withheld, conditioned, or delayed) at materially impair the IndemnitorIndemnified Party’s expense by sending written notice to rights under this Agreement); and the Indemnitee of its election to do so within 30 Business Days after receiving written notice from the Indemnitee; provided, that notwithstanding the foregoing, the Indemnitor Indemnified Party shall not have the right to defend or direct the defense of any such Third Party Claim (a) that is likely to result in Losses that will, reasonably cooperate in the good faith determination of the Indemnitee, materially exceed the amount of indemnification that the Indemnitor would be liable to pay to the Indemnitee hereunder, (b) that seeks solely an injunction or other equitable relief against the Indemnitee (and in connection with which no claims for monetary Losses are pursued), (c) that is a criminal, regulatory or statutory enforcement action brought by a Governmental Body, (d) that involves Taxes or (e) if the Indemnitor does not make reasonably adequate provision with respect to the defense, satisfaction and discharge of such Third Party Claim. The Indemnitee agrees to reasonably cooperate with the Indemnitor and its counsel in the defense against any such asserted claim, including by providing the Indemnitor (and selected counsel) with access to any documents, employees, witnesses and other persons or information in such IndemniteeIndemnifying Party’s access or control that are reasonably requested and may facilitate investigation or defense or settlement of any such Third Party ClaimClaim and provide non-financial assistance at the Indemnifying Party’s request. The Indemnitee Indemnified Party shall have the right to participate in (but not control) the defense of such asserted claim with separate counsel, if it desires, at its own expense. Any settlement or compromise of such asserted claim by the Indemnitor shall require the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed; provided, that no such consent shall be required as long as it is solely a monetary settlement (that will be paid by the Indemnitor or its insurer in its entirety in accordance with the terms hereof) that provides a full and unconditional release of the Indemnitee with respect to such matter and does not contain an admission of liability or any continuing obligation on the part of the Indemnitee. Unless the Indemnitor assumes the defense of such claim within 30 Business Days after receiving written notice thereof from the Indemnitee, or fails to diligently prosecute the defense of such Third Party Claim after having assumed the defense thereof, the Indemnitee shall control the defense of such claim (with counsel of its choice and with the Indemnitor required to pay all reasonable costs and reasonable expenses incurred by the Indemnitee in connection with such matter) and the Indemnitor shall have the right to participate therein at its own expense; provided, that in the event the Indemnitee controls the defense of any such Claim at its expense and through counsel of its choosing. The foregoing indemnifications shall survive the expiration or termination of this Agreement. “Claim(s)” means a claim, suit, action, demand, investigation, inquiry or proceeding brought by a third party or governmental entity against the Indemnitee shall not be permitted respective Indemnified Party. “Costs” means judgments, losses, payments, costs, charges, expenses (including reasonable attorney’s, accounting, investigator, experts and consulting fees, disbursements, court costs and litigation expenses), damages, liabilities, settlements, fines, interest, penalties, reasonable costs of advertising material and media time/space, all expenses of recall, refunds, public notices, lost profits (but only to settle or compromise any the extent the Indemnifying Party is otherwise responsible for such claim without under the prior written consent terms of this Agreement) and other similar amounts. *** Certain information on this page has been omitted and filed separately with the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayedSecurities and Exchange Commission. In Confidential treatment has been requested with respect to the event the Indemnitor assumes the defense of the claim, the Indemnitor will keep the Indemnitee reasonably informed of the progress of any such defense, compromise or settlementomitted portions.
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