Common use of Indemnity Claim Clause in Contracts

Indemnity Claim. (a) Following the Closing, the Stockholder Representative shall assume control of the Indemnification Matter and pursue the conduct, negotiation, prosecution and defense of the Indemnification Matter. Without limiting the foregoing, Buyer shall, and shall cause the Acquired Companies to, keep the Stockholder Representative reasonably apprised of the status of the Indemnification Matter (including any disputes in connection therewith). From and after the Closing, Buyer shall not, and shall cause the Acquired Companies not to, amend the Prior Purchase Agreement as in effect as of the date hereof, without the prior written consent of the Stockholder Representative. Buyer shall, and will cause the Surviving Corporation and its Subsidiaries, and its and their officers, directors, employees and agents to, in each case, at the Stockholder Representative’s sole cost and expense, use commercially reasonable efforts to cooperate with the Stockholder Representative in connection with the Indemnification Matter. (b) Subject to Section 6.22(a), upon final resolution of the Indemnification Matter, whether by a decision of the applicable Governmental Entity with respect to the Indemnification Matter, or by settlement (which shall require the prior written consent of the Stockholder Representative, in its sole discretion) or otherwise, Buyer shall (i) provide prior written notice of such final resolution to the Stockholder Representative and (ii) cause the Surviving Corporation or an Acquired Company to pay all amounts received by Buyer, the Surviving Corporation, any Acquired Company, or any of their respective Affiliates in respect of such Indemnification Matter (the “Indemnification Payment”) within five (5) Business Days of receipt thereof in accordance with the payment directions provided by the Stockholder Representative. (c) Notwithstanding anything herein to the contrary, following the Closing, the Stockholder Representative shall not enter into any settlement or consent to the entry of any judgement with respect to the Indemnification Matter, in each case, which involves a non-monetary obligation on the Surviving Corporation or on any Acquired Company, without the prior written consent of Buyer. Notwithstanding the foregoing, during the period from the Agreement Date to the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, any settlement or consent to the entry of any judgment with respect to the Indemnification Matter shall only be made in compliance with Section 6.2(s) of this Agreement.

Indemnity Claim. (a) Following In the Closingevent that Purchaser shall become aware of facts or events that may reasonably be expected to give rise to a Claim, Purchaser shall deliver a Claim Notice, together with proof of delivery of a copy of such Claim Notice to the Stockholder Representative shall assume control (“Proof of Delivery”), to the Indemnification Matter and pursue the conductEscrow Agent, negotiation, prosecution and defense of the Indemnification Matter. Without limiting the foregoing, Buyer shall, and shall cause the Acquired Companies to, keep the Stockholder Representative reasonably apprised of the status of the Indemnification Matter (including any disputes such delivery to be in connection therewith). From and after the Closing, Buyer shall not, and shall cause the Acquired Companies not to, amend the Prior Purchase Agreement as in effect as of the date hereof, without the prior written consent of the Stockholder Representative. Buyer shall, and will cause the Surviving Corporation and its Subsidiaries, and its and their officers, directors, employees and agents to, in each case, at the Stockholder Representative’s sole cost and expense, use commercially reasonable efforts to cooperate accordance with the Stockholder Representative in connection with the Indemnification Matternotice provisions of this Escrow Agreement. (b) Subject to Section 6.22(a)Upon receipt of any Claim Notice and Proof of Delivery, upon final resolution of the Indemnification Matter, whether by a decision of Escrow Agent shall promptly (x) make entries or notations in the applicable Governmental Entity with respect account records relating to the Indemnification MatterEscrow Funds, or by settlement (which shall require the prior written consent of the Stockholder Representative, in its sole discretion) or otherwise, Buyer shall (i) provide prior written notice of such final resolution indicating that funds equal to the Stockholder Representative Estimated Claim Amount are reserved to satisfy such Claim, and (ii) cause identifying the Surviving Corporation or an Acquired Company date and number of such Claim Notice and (y) deliver notice of receipt of such Claim Notice to pay all amounts received the Representative. If requested by Buyerthe Representative, the Surviving Corporation, any Acquired Company, or any of their respective Affiliates in respect Escrow Agent will promptly deliver a copy of such Indemnification Matter (Claim Notice to the “Indemnification Payment”) within five (5) Business Days of receipt thereof in accordance with the payment directions provided by the Stockholder Representative. (c) Notwithstanding anything herein If on or prior to the contrary, expiration of the thirty (30) day period immediately following the Closingdelivery by Purchaser of any Claim Notice and the associated Proof of Delivery to the Escrow Agent, the Stockholder Escrow Agent receives a Claim Response from the Representative, a copy of which shall be delivered contemporaneously by the Representative to Purchaser, the Escrow Agent (i) shall disburse to Purchaser the amount stated in such Claim Response not to be in dispute and (ii) shall not enter into any settlement disburse the amount so stated to be in dispute (the “Disputed Amount”) until it receives a Joint Written Direction or consent a Resolved Claim directing an amount of the Escrow Funds be so disbursed, and then only in such amount. (d) If after expiration of such thirty (30) day period the Escrow Agent has not received a Claim Response, the Escrow Agent shall disburse the Estimated Claim Amount to Purchaser at the direction of Purchaser. (e) Any payment to or at the direction of Purchaser, including payment for Claims, shall be made from the Second Escrow Account to the entry of any judgement with respect extent funds are available in such account, and, to the Indemnification Matterextent all of the funds in the Second Escrow Account have been disbursed, in each case, which involves a non-monetary obligation on the Surviving Corporation or on any Acquired Company, without the prior written consent of Buyer. Notwithstanding the foregoing, during the period from the Agreement Date to the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, any settlement or consent to the entry of any judgment with respect to the Indemnification Matter shall only be made in compliance with Section 6.2(s) of this AgreementFirst Escrow Account.

Indemnity Claim. (a) Following Parent, acting through the Closing, the Stockholder Representative shall assume control Committee may make a claim for indemnification pursuant to Article VIII of the Indemnification Matter Merger Agreement or a claim for expenses incurred by the Representative and pursue the conduct, negotiation, prosecution and defense paid by Parent in accordance with Section 8.6 of the Indemnification Matter. Without limiting Merger Agreement (“Indemnity Claim”) against the foregoingHoldback Escrowed Shares Fund by giving notice (a “Notice”) to the Representative (with a copy to the Escrow Agent) specifying (i) the covenant, Buyer shallrepresentation, and shall cause warranty, agreement, undertaking or obligation contained in the Acquired Companies toMerger Agreement which it asserts has been breached or otherwise entitles Parent to indemnification, keep (ii) the Stockholder Representative reasonably apprised total amount of the status of actual out-of-pocket Loss or the Indemnification Matter anticipated potential Loss (including any disputes costs or expenses which have been or may be reasonably incurred in connection therewith). From and after the Closing, Buyer shall not, and (iii) whether the Loss resulting from the Indemnity Claim may be covered (in whole or in part) under any insurance and the estimated amount of such Loss which may be covered under such insurance. The Committee also shall cause deliver to the Acquired Companies not toEscrow Agent (with a copy to the Representative), amend concurrently with its delivery to the Prior Purchase Agreement as in effect as Escrow Agent of the Notice, a certification as to the date hereof, without on which the prior written consent of Notice was delivered to the Stockholder Representative. Buyer shall, and will cause the Surviving Corporation and its Subsidiaries, and its and their officers, directors, employees and agents to, in each case, at the Stockholder Representative’s sole cost and expense, use commercially reasonable efforts to cooperate with the Stockholder Representative in connection with the Indemnification Matter. (b) Subject If the Representative shall give a notice to Section 6.22(athe Committee (with a copy to the Escrow Agent) (a “Counter Notice”), upon final resolution within thirty (30) days following the date of receipt (as specified in the Committee's certification) by the Representative of a copy of the Indemnification MatterNotice, disputing whether by a decision the Indemnity Claim is indemnifiable under Article VIII of the applicable Governmental Entity Merger Agreement, the parties shall attempt to resolve such dispute by voluntary settlement as provided in paragraph 2(c) below. If no Counter Notice with respect to the Indemnification Matter, or by settlement (which shall require the prior written consent of the Stockholder Representative, in its sole discretion) or otherwise, Buyer shall (i) provide prior written notice of such final resolution to the Stockholder Representative and (ii) cause the Surviving Corporation or an Acquired Company to pay all amounts Indemnity Claim is received by Buyerthe Escrow Agent from the Representative within such thirty (30) day period, the Surviving Corporation, any Acquired Company, or any Indemnity Claim shall be deemed to be an Established Claim (as hereinafter defined) for purposes of their respective Affiliates in respect of such Indemnification Matter (the “Indemnification Payment”) within five (5) Business Days of receipt thereof in accordance with the payment directions provided by the Stockholder Representativethis Agreement. (c) Notwithstanding anything herein If the Representative delivers a Counter Notice to the contrary, following the ClosingEscrow Agent, the Stockholder Committee and the Representative shall not enter into any settlement or consent to the entry of any judgement with respect to the Indemnification Matter, in each case, which involves a non-monetary obligation on the Surviving Corporation or on any Acquired Company, without the prior written consent of Buyer. Notwithstanding the foregoingshall, during the period from of sixty (60) days following the Agreement Date delivery of such Counter Notice or such greater period of time as the parties may agree to in writing (with a copy to the earlier Escrow Agent), attempt to resolve the dispute with respect to which the Counter Notice was given. If the Committee and the Representative shall reach a settlement with respect to any such dispute, they shall jointly deliver written notice of such settlement to the Escrow Agent specifying the terms thereof. If the Committee and the Representative shall be unable to reach a settlement with respect to a dispute, such dispute shall be resolved by arbitration pursuant to paragraph 2(d) below. (d) If the Committee and the Representative cannot resolve a dispute prior to expiration of the Effective Time sixty (60) day period referred to in paragraph 2(c) above (or such longer period as the termination of this Agreement parties may have agreed to in writing), then such dispute shall be submitted (and either party may submit such dispute) for arbitration before a single arbitrator in New York City, New York, in accordance with its termsthe commercial arbitration rules of the American Arbitration Association then in effect. The Committee and the Representative shall attempt to agree upon an arbitrator; if they shall be unable to agree upon an arbitrator within ten (10) days after the date on which the disputed matter may, under this Agreement, be submitted for arbitration, then either the Committee or the Representative, upon written notice to the other, may apply for appointment of such arbitrator by the American Arbitration Association. Subject to Section 8.6 of the Merger Agreement, each party shall pay the fees and expenses of counsel used by it and 50% of the fees and expenses of the arbitrator and of other expenses of the arbitration. The arbitrator shall render his decision within ninety (90) days after his appointment and may award costs to any settlement of the parties if, in his sole opinion reasonably exercised, the claims made by any other party or parties had no reasonable basis and were arbitrary and capricious. Such decision and award shall be in writing and shall be final and conclusive on the parties, and counterpart copies thereof shall be delivered to each of the parties. Judgment may be obtained on the decision of the arbitrator so rendered in any court having jurisdiction and may be enforced in accordance with the law of the State of New York, without regard to the principles of conflict of laws therein. If the arbitrator shall fail to render his decision or award within such ninety (90) day period, either the Committee or the Representative may apply to any New York or federal court then having jurisdiction by action, proceeding or otherwise, as may be proper to determine the matter in dispute consistently with the provisions of this Agreement. The parties consent to the entry exclusive jurisdiction of the New York courts sitting in the County of New York for this purpose. The prevailing party (or either party, in the case of a decision or award rendered in part for each party) shall send a copy of the arbitration decision or of any judgment with respect of the New York or federal court (as applicable) to the Escrow Agent. (e) As used in this Agreement, “Established Claim” means any (i) Indemnification Matter Claim deemed established pursuant to the last sentence of paragraph 2(b) above, (ii) Indemnification Claim resolved in favor of Parent by settlement of the parties pursuant to paragraph 2(c) above, resulting in a dollar award to Parent or (iii) Indemnification Claim established by the final decision of an arbitrator or the final decision of a court of competent jurisdiction pursuant to paragraph 2(d) above (in both cases after exhaustion of any appeals), which resulted in an award of damages to Parent. (f) (i) Promptly after an Indemnity Claim becomes an Established Claim, the Committee shall only deliver a notice to the Escrow Agent directing the Escrow Agent to pay to Parent, and the Escrow Agent shall pay to Parent, an amount of Holdback Escrowed Shares the value of which equals to the aggregate dollar amount of the Established Claim in accordance with Section 2(f)(ii) (or, if at such time there remains in the Holdback Escrowed Shares Fund an insufficient amount of Holdback Escrowed Shares to satisfy the full amount so payable, the full amount of Holdback Escrowed Shares remaining in the Holdback Escrowed Shares Fund). (ii) Payment of an Established Claim shall be made in compliance with Section 6.2(sshares of Parent Common Stock in the Holdback Escrowed Shares Fund, pro rata from the account maintained on behalf of each Holder. In such event, such shares shall be valued at the Fair Market Value (as defined below) and the Escrow Agent shall promptly cause the appropriate number of this Agreementshares to be transferred from the Holdback Escrowed Shares Fund to Parent, or its order, to the extent of the number of shares of Parent Common Stock in the Holdback Escrowed Shares Fund. The parties hereto (other than the Escrow Agent) agree that the foregoing right to make payments of Established Claims in shares of Parent Common Stock in the Holdback Escrowed Shares Fund may be made notwithstanding any other agreements restricting or limiting the ability of any Holder to sell any shares of Parent Common Stock or otherwise. As used herein, “Fair Market Value” means the average reported last sales price for the Parent Common Stock for the ten (10) Trading Days ending on the last Trading Day prior to the day the Established Claim is paid.