Common use of Procedure and Payment Clause in Contracts

Procedure and Payment. (a) The person seeking indemnification under Section 10.1, and 10.2 (the "Indemnified Party") agrees to give prompt notice to the Person against whom indemnity is sought (the "Indemnifying Party") of the assertion of any claim, or the commencement of any suit, action or proceeding, in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party. (b) The Indemnifying Party shall be entitled to defend any claim asserted by any third party ("Third Party Claim") with counsel of its choice reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice 44 <PAGE> of the Third Party Claim that it will indemnify the Indemnified Party from and against all Losses that the Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third Party Claim, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations under this Agreement, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (c) So long as the Indemnifying Party is conducting the defense of any Third Party Claim in accordance with the provisions of this Section 10.3, the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party. (d) Each party shall cooperate, and cause its Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested by any other party in connection therewith. 10.4

Procedure and Payment. (a) The person seeking indemnification under Section 10.1If, and 10.2 (after the "Indemnified Party") agrees to give prompt notice to Closing Date, either the Person against whom indemnity is sought (Company Shareholders, on the "Indemnifying Party") of the assertion of any claimone hand, or the commencement Acquiror Indemnified Parties, on the other hand, ("INDEMNITEE") shall receive notice of any suitthird-party claim or alleged third-party claim asserting the existence of any matter of a nature as to which the Indemnitee has been indemnified against under this Article 8 by the other party hereto ("INDEMNITOR"), action or proceeding, Indemnitee shall promptly notify Indemnitor in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information writing with respect thereto as the Indemnifying Party may reasonably request. The thereto; provided that any delay or failure by Indemnitee to so notify the Indemnifying Party provide such notice shall not relieve impair or affect its rights hereunder or the Indemnifying Party obligation of its obligations hereunder, Indemnitor with respect to such claim except to the extent Indemnitor can demonstrate that it was actually prejudiced by Indemnitee's delay in giving or failure to give such failure notice. Indemnitor shall have materially and adversely prejudiced the Indemnifying Party. (b) The Indemnifying Party shall be entitled right to defend against any such third-party claim (other than any claim asserted by any third party ("Third Party Claim") with counsel in respect of its choice reasonably satisfactory to the Indemnified Party so long as Taxes), provided that (i) the Indemnifying Party notifies the Indemnified Party in writing Indemnitor shall, within fifteen ten (1510) days after the Indemnified Party has given giving of such notice 44 <PAGE> of the Third Party Claim by Indemnitee, notify Indemnitee that it will indemnify disputes such claim, give reasons therefor, and that Indemnitor will, at its own cost and expense, defend the Indemnified Party from same, and against all Losses that the Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third Party Claim, (ii) such defense is instituted and continuously maintained in good faith by Indemnitor. In such event the Indemnifying Party provides defense may, if necessary, be maintained in the Indemnified Party name of Indemnitee. Indemnitee may, if it so elects, designate its own counsel to participate with evidence reasonably acceptable the counsel selected by Indemnitor in the conduct of such defense. Indemnitor shall not permit any Lien or execution to attach to the Indemnified Party that assets of the Indemnifying Party will have Indemnitee as a result of such claim, and the financial resources Indemnitor shall provide such bonds or deposits as shall be necessary to prevent the same. In any event Indemnitee shall be kept fully advised as to the status of such defense. If Indemnitor shall be given notice of a claim as aforesaid and shall fail to notify Indemnitee of its election to defend against such claim within the Third Party Claim time and fulfill its indemnification obligations under this Agreement, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement ofas prescribed herein, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely after having so elected to establish a precedential custom or practice materially adverse defend such claim shall fail to the continuing business interests of the Indemnified Party institute and (v) the Indemnifying Party conducts the maintain such defense of the Third Party Claim actively and diligently. (c) So long as the Indemnifying Party is conducting the defense of any Third Party Claim in accordance with the provisions of this Section 10.3foregoing, or if such defense shall be unsuccessful then, in any such event, the Indemnified Party Indemnitor shall be entitled fully satisfy and discharge the claim within ten (10) days after notice from Indemnitee requesting Indemnitor to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party. (d) Each party shall cooperate, and cause its Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested by any other party in connection therewith. 10.4do so.

Procedure and Payment. (a) The person seeking indemnification under Section 10.1If, and 10.2 after the Closing Date either Seller or Purchaser (the "Indemnified PartyIndemnitee") agrees shall receive notice of any third-party claim or alleged third-party claim asserting the existence of any matter of a nature as to give prompt notice to which the Person Indemnitee has been indemnified against whom indemnity is sought under this Article 8 by the other party hereto (the "Indemnifying PartyIndemnitor"), or if such Indemnitee wishes to assert the existence of any other matter as to which the Indemnitee has been indemnified under this Article 8, Indemnitee shall promptly notify Indemnitor in writing with respect thereto, which notice shall state the facts upon which the Indemnitee makes such claim for indemnification, together with reasonable documentation of such claim (the "Notice of Claim"). Such notice shall be given within ninety (90) days of the assertion date upon which the Indemnitee becomes aware of any claimthe Claim, provided that no failure by an Indemnitee in giving such Notice of Claim shall reduce or otherwise affect the commencement obligation of any suit, action or proceeding, in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information Indemnitor to indemnify the Indemnitee with respect thereto as the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunderthereto, except to the extent that the Indemnitor demonstrates that the defense of such action is prejudiced by the Indemnitee's failure or delay to give such notice. Indemnitor shall have materially and adversely prejudiced the Indemnifying Party. (b) The Indemnifying Party shall be entitled right to defend against any such third-party claim asserted by any third party ("Third Party Claim") with counsel of its choice reasonably satisfactory to the Indemnified Party so long as provided (i) the Indemnifying Party notifies the Indemnified Party in writing Indemnitor shall, within fifteen ten (1510) days after the Indemnified Party has given notice 44 <PAGE> giving of the Third Party Claim such Notice by Indemnitee, notify Indemnitee that it will indemnify disputes such claim, give reasons therefor, and that Indemnitor will, at its own cost and expense, defend the Indemnified Party from same, and against all Losses that the Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third Party Claim, (ii) such defense is instituted and continuously maintained in good faith by Indemnitor. In such event the Indemnifying Party provides defense may, if necessary, be maintained in the Indemnified Party name of Indemnitee. Indemnitee may, if it so elects, designate its own counsel to participate with evidence reasonably acceptable the counsel selected by Indemnitor in the conduct of such defense. Indemnitor shall not permit any lien or execution to attach to the Indemnified Party that assets of the Indemnifying Party will have Indemnitee as a result of such claim, and the financial resources Indemnitor shall provide such bonds or deposits as shall be necessary to prevent the same. In any event Indemnitee shall be kept fully advised as to the status of such defense. If Indemnitor shall be given notice of a claim as aforesaid and shall fail to notify Indemnitee of its election to defend against such claim within the Third Party Claim time and fulfill its indemnification obligations under this Agreement, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement ofas prescribed herein, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely after having so elected to establish a precedential custom or practice materially adverse defend such claim shall fail to the continuing business interests of the Indemnified Party institute and (v) the Indemnifying Party conducts the maintain such defense of the Third Party Claim actively and diligently. (c) So long as the Indemnifying Party is conducting the defense of any Third Party Claim in accordance with the provisions of this Section 10.3foregoing, or if such defense shall be unsuccessful then, in any such event, the Indemnified Party Indemnitor shall be entitled fully satisfy and discharge the claim within ten (10) days after notice from Indemnitee requesting Indemnitor to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party. (d) Each party shall cooperate, and cause its Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested by any other party in connection therewith. 10.4do so.

Procedure and Payment. (a1) The person seeking indemnification under Section 10.14.A, and 10.2 4.B (the "Indemnified Party") agrees to give prompt notice to the Person against whom indemnity is sought (the "Indemnifying Party") of the assertion of any claim, or the commencement of any suit, action or proceeding, in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party. (b2) The Indemnifying Party shall be entitled to defend any claim asserted by any third party ("Third Party Claim") with counsel of its choice reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice 44 <PAGE> of the Third Party Claim that it will indemnify the Indemnified Party from and against all Losses Damages that the Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third Party Claim, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations under this Agreement, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, and (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (c3) So long as the Indemnifying Party is conducting the defense of any Third Party Claim in accordance with the provisions of this Section 10.34.C, the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party. (d4) Each party shall cooperate, and cause its Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested by any other party in connection therewith. 10.43 <PAGE> D. Calculation of Damages. (1) The amount of any Damages payable under Section 4.A and 4.B by the Indemnifying Party shall be net of any amounts recovered by the Indemnified Party under applicable insurance policies and the Indemnified Party shall use commercially reasonable efforts to collect any amounts available under such insurance policies. (2) If the Indemnified Party receives an amount under insurance coverage or from a third party with respect to Damages at any time subsequent to any indemnification provided by the Indemnifying Party pursuant to Section 4.A and 4.B, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification up to such amount received by such Indemnified Party, but net of any expenses incurred by such Indemnified Party in collecting such amount. 5.

Procedure and Payment. (a1) The person seeking indemnification under Section 10.17.A, and 10.2 7.B (the "Indemnified Party") agrees to give prompt notice to the Person against whom indemnity is sought (the "Indemnifying Party") of the assertion of any claim, or the commencement of any suit, action or proceeding, in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party. (b2) The Indemnifying Party shall be entitled to defend any claim asserted by any third party ("Third Party Claim") with counsel of its choice reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Indemnifying Party has given notice 44 <PAGE> of the Third Party Claim that it will indemnify the Indemnified Party from and against all Losses Damages that the Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third Party Claim, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations under this Agreement, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, and (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (c3) So long as the Indemnifying Party is conducting the defense of any Third Party Claim in accordance with the provisions of this Section 10.37.C, the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party. 11 <PAGE> (d4) Each party shall cooperate, and cause its Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested by any other party in connection therewith. 10.4D. Calculation of Damages. (1) The amount of any Damages payable under Section 7.A and 7.B by the Indemnifying Party shall be net of any amounts recovered by the Indemnified Party under applicable insurance policies and the Indemnified Party shall use commercially reasonable efforts to collect any amounts available under such insurance policies. (2) If the Indemnified Party receives an amount under insurance coverage or from a third party with respect to Damages at any time subsequent to any indemnification provided by the Indemnifying Party pursuant to Section 7.A and 7.B, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification up to such amount received by such Indemnified Party, but net of any expenses incurred by such Indemnified Party in collecting such amount. (3) In no event shall either Buyers or Sellers be liable to the other party for any consequential damages or lost profits in excess of $750,000. 8.