PROCEDURE FOR INDEMNIFICATION--OTHER CLAIMS. A Claim for indemnification for any matter not involving a third-party Claim shall be asserted by a Claim Notice to the Indemnifying Party from whom indemnification is sought as set forth below and must within the Indemnification Time Period: (a) If any Seller or Buyer believes that it has a non-third-party Claim for indemnification pursuant to this Section 6, it shall submit a Claim Notice to the other party. The Claim Notice from the Indemnified Person shall state with particularity the parties to which the Claim relates, the basis for the Claim, together with sufficient facts relating thereto so the Indemnifying Person may reasonably evaluate such Claim, and an estimate of the amount that equals the amount of Liability associated with such Claim. The estimated amount set forth in the Claim Notice shall not be a limitation of the actual amount of the Claim (that is, the Indemnified Person may revise the estimated amount of Liability by notice to the Indemnifying Party and thereafter such revised amount shall become the estimated amount of Liability for all purposes under this Agreement) (for purposes of this Section 6.5, such estimated amount of Liability, as may be revised, shall be referred to as the "Liability Amount"). (b) If the Indemnifying Party disputes either the validity, amount or calculation of the Claim and/or the Liability Amount, the Indemnifying Party shall give written notice of such dispute to the Indemnified Person within thirty (30) days after receipt of the Claim Notice from the Indemnified Person to the Indemnifying Party. If (i) the Indemnifying Party fails to respond to the Claim Notice within thirty (30) days after the delivery to it of the Claim Notice, or (ii) the Indemnifying Party notifies the Indemnified Person in writing that there is no dispute with respect to the Claim and the Liability Amount, then the Indemnified Person shall be entitled to recover from the Indemnifying Party such Liability Amount. If the Indemnifying Party has asserted that the amount of Claim is less than the Liability Amount, then the Indemnifying Party shall notify the Indemnified Person, in writing, of the portion of the Liability Amount that it does not dispute, and the Indemnified Person shall be entitled to recover from the Indemnifying Party the undisputed portion of the Liability Amount thereof, without prejudice to the Indemnifying Party's right to challenge, or the Indemnified Person's right to seek collection of, the disputed portion of the Liability Amount thereof. (c) The Indemnified Party shall provide to the Indemnifying Party such information with respect to the Claim as the Indemnifying Party shall reasonably request.
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Sources: Stock Purchase Agreement (Smartserv Online Inc), Stock Purchase Agreement (Smartserv Online Inc)
PROCEDURE FOR INDEMNIFICATION--OTHER CLAIMS. A Claim for indemnification for In the event any matter Indemnified Party should have a claim against any Indemnitor that does not involving involve a third-third party Claim shall claim being asserted against or sought to be asserted by a Claim Notice to the Indemnifying Party from whom indemnification is sought as set forth below and must within the Indemnification Time Period:
(a) If any Seller or Buyer believes that it has a non-third-party Claim for indemnification pursuant to this Section 6, it shall submit a Claim Notice to the other party. The Claim Notice collected from the Indemnified Person shall state with particularity the parties to which the Claim relatesParty, the Indemnified Party shall deliver notice of such claim with reasonable promptness to the Indemnitor, stating the basis or grounds in this Agreement for the Claim, together with sufficient facts relating thereto so the Indemnifying Person may reasonably evaluate such Claim, indemnity and an estimate of the amount that equals the amount of Liability associated with such Claimthe Indemnified Party’s claim to the extent then known and quantifiable. The estimated Indemnitor shall have thirty (30) calendar days after its receipt of such claim to (i) agree to the amount or method of determination set forth in such claim and pay such amount to the Claim Notice shall not be a limitation of Indemnified Party in immediately available funds or (ii) provide the actual Indemnified Party with written notice that it disputes either its obligation to provide the indemnification sought in such notice or the amount of the Claim (that is, Indemnified Party’s claim. If the Indemnitor does not notify the Indemnified Person may revise the estimated amount of Liability by notice to the Indemnifying Party and thereafter such revised amount shall become the estimated amount of Liability for all purposes under this Agreement) (for purposes of this Section 6.5, such estimated amount of Liability, as may be revised, shall be referred to as the "Liability Amount").
(b) If the Indemnifying Party disputes either the validity, amount or calculation of the Claim and/or the Liability Amount, the Indemnifying Party shall give written notice of such dispute to the Indemnified Person within thirty (30) calendar days after following its receipt of the Claim Notice from such notice that Indemnitor disputes its liability to the Indemnified Person to the Indemnifying Party. If (i) the Indemnifying Party fails to respond to the Claim Notice within thirty (30) days after the delivery to it of the Claim Notice, or (ii) the Indemnifying Party notifies the Indemnified Person in writing that there is no dispute with respect to the Claim and the Liability Amountsuch claim, then such claim specified by the Indemnified Person Party in such notice shall be entitled to recover from conclusively deemed a liability of the Indemnifying Party such Liability AmountIndemnitor. If the Indemnifying Party has asserted that Indemnitor delivers a notice disputing the basis for or amount of Claim is less than the Liability Amountclaim, then the Indemnifying Party shall notify the Indemnified Person, in writing, of the portion of the Liability Amount that it does not dispute, Indemnitor and the Indemnified Person Party shall be entitled negotiate in good faith to recover from resolve the Indemnifying Party matter. In the undisputed portion event that the controversy is not resolved within twenty (20) calendar days of the Liability Amount thereofgiving of a notice by the Indemnitor disputing the claim, without prejudice the parties thereafter may pursue any and all available remedies at law (subject to the Indemnifying Party's right to challenge, or the Indemnified Person's right to seek collection of, the disputed portion of the Liability Amount thereoflimitations and conditions provided in this Agreement).
(c) The Indemnified Party shall provide to the Indemnifying Party such information with respect to the Claim as the Indemnifying Party shall reasonably request.
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PROCEDURE FOR INDEMNIFICATION--OTHER CLAIMS. A Claim claim for indemnification for any matter not involving a third-third party Claim shall claim may be asserted by a Claim Notice delivery of written notice to the Indemnifying Party party from whom indemnification is sought as set forth below and must within the Indemnification Time Period:
sought, which notice shall (ai) If any Seller state that such indemnified party has paid, sustained, incurred, or Buyer believes properly accrued, or reasonably anticipates that it has will have to pay, sustain, incur, or accrue indemnifiable Damages as a non-third-party Claim for indemnification pursuant to this Section 6result of facts, it shall submit a Claim Notice circumstances, events or occurrences existing prior to the other party. The Claim Notice from date of such written notice, (ii) state the Indemnified Person shall state with particularity amount of such indemnifiable Damages to the parties extent known at the time of such written notice and (iii) describe in reasonable detail, to which the Claim relatesextent known, the indemnifiable Damages included in the amount so stated, including the date each such item was paid, sustained, incurred or properly accrued, or the basis for the Claim, together with sufficient facts relating thereto so the Indemnifying Person may reasonably evaluate such Claimanticipated liability, and an estimate the nature of the amount that equals claim to which such indemnifiable Damages are related. Upon receipt by the amount indemnifying party of Liability associated with such Claim. The estimated amount set forth in the Claim Notice shall not be a limitation of the actual amount of the Claim (that iswritten notice, the Indemnified Person may revise the estimated amount of Liability by indemnifying party shall have thirty (30) days to review such notice for indemnification and state whether it has any objections to the Indemnifying Party and thereafter such revised amount shall become the estimated amount of Liability for all purposes under this Agreement) (for purposes of this Section 6.5, such estimated amount of Liability, as may be revised, shall be referred to as the "Liability Amount").
(b) matters stated therein. If the Indemnifying Party disputes either the validity, amount indemnifying party has not objected in writing to any claim or calculation of the Claim and/or the Liability Amount, the Indemnifying Party shall give written claims made in such notice of such dispute to the Indemnified Person for indemnification within thirty (30) days after of receipt of the Claim Notice from the Indemnified Person to the Indemnifying Party. If (i) the Indemnifying Party fails to respond to the Claim Notice within thirty (30) days after the delivery to it such notice of the Claim Noticeindemnification, or (ii) the Indemnifying Party notifies the Indemnified Person in writing that there is no dispute with respect to the Claim and the Liability Amount, then the Indemnified Person shall be entitled to recover from the Indemnifying Party such Liability Amount. If the Indemnifying Party has asserted that the amount of Claim is less than such Damages shall thereupon become payable to such indemnified party by such indemnifying party. In the Liability Amountevent Buyer reasonably believes a claim pursuant to this Section 10.9 may result in a demand against the Escrow Fund, then it shall deliver the Indemnifying Party written notice claiming indemnification to Stockholders’ Representative and such notice shall notify the Indemnified Person, in writing, be deemed to be delivery of the portion of notice to the Liability Amount Securityholders; provided, however, that it does not disputein the event indemnification is being sought hereunder directly from a Seller Indemnifying Party, and the Indemnified Person such notice shall be entitled delivered to recover from the Indemnifying Party the undisputed portion of the Liability Amount thereof, without prejudice to the such Seller Indemnifying Party's right to challenge, or the Indemnified Person's right to seek collection of, the disputed portion of the Liability Amount thereof.
(c) The Indemnified Party shall provide to the Indemnifying Party such information with respect to the Claim as the Indemnifying Party shall reasonably request.
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PROCEDURE FOR INDEMNIFICATION--OTHER CLAIMS. A Claim for indemnification for any matter not involving a third-party Claim shall be asserted by a Claim Notice to the Indemnifying Party from whom indemnification is sought as set forth below and must within the Indemnification Time Period:
(a) If any Seller or Buyer believes that it has a non-third-party Claim for indemnification pursuant to this Section 6, it shall submit a Claim Notice to the other party. The Claim Notice from the Indemnified Person shall state with particularity the parties to which the Claim relates, the basis for the Claim, together with sufficient facts relating thereto so the Indemnifying Person may reasonably evaluate such Claim, and an estimate of the amount that equals the amount of Liability associated with such Claim. The estimated amount set forth in the Claim Notice shall not be a limitation of the actual amount of the Claim (that is, the Indemnified Person may revise the estimated amount of Liability by notice to the Indemnifying Party and thereafter such revised amount shall become the estimated amount of Liability for all purposes under this Agreement) (for purposes of this Section 6.5, such estimated amount of Liability, as may be revised, shall be referred to as the "Liability Amount").
(b) If the Indemnifying Party disputes either the validity, amount or calculation of the Claim and/or the Liability Amount, the Indemnifying Party shall give written notice of such dispute to the Indemnified Person within Within thirty (30) days after a party obtains knowledge that it has sustained any Damages not involving a Third-Party Claim or action which such party reasonably believes may give rise to a claim for indemnification from another party hereunder or if such Damages allegedly sustained could be applied against the thresholds or baskets described in Section 9.04 or Section 9.05, such indemnified party shall deliver notice of such claim to the indemnifying party, together with a description of the facts and data which support the claim for indemnification; provided, however, that failure to so notify the indemnifying party shall not relieve the indemnifying party of its indemnification obligations hereunder, except to the extent that the indemnifying party is actually prejudiced thereby. Any such written notice must be made to the indemnifying party not later than the expiration of the applicable survival period specified in Section 9.01 above. If the indemnifying party does not notify the indemnified party in writing within sixty (60) days following its receipt of such written notice that the Claim Notice from the Indemnified Person indemnifying party disputes its liability to the Indemnifying Partyindemnified party under this Article IX, such claim specified by the indemnified party in such written notice shall be conclusively deemed a liability of the indemnifying party under this Article IX and the indemnifying party shall, subject to satisfaction of the applicable threshold and basket requirements as set forth in Section 9.04 and Section 9.05 and the other limitations in this Article IX, pay the amount of such claim to the indemnified party on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If (i) the Indemnifying Party fails to respond to the Claim Notice within thirty (30) days after the delivery to it of the Claim Notice, or (ii) the Indemnifying Party notifies the Indemnified Person in writing that there is no dispute indemnifying party has timely disputed its liability with respect to such claim, as provided above, the Claim indemnifying party and the Liability Amountindemnified party shall proceed in good faith to negotiate a resolution of such dispute and, then the Indemnified Person if not resolved through negotiations, such dispute shall be entitled resolved pursuant to recover from the Indemnifying Party such Liability Amount. If the Indemnifying Party has asserted that the amount of Claim is less than the Liability Amount, then the Indemnifying Party shall notify the Indemnified Person, in writing, of the portion of the Liability Amount that it does not dispute, and the Indemnified Person shall be entitled to recover from the Indemnifying Party the undisputed portion of the Liability Amount thereof, without prejudice to the Indemnifying Party's right to challenge, or the Indemnified Person's right to seek collection of, the disputed portion of the Liability Amount thereofArticle X below.
(c) The Indemnified Party shall provide to the Indemnifying Party such information with respect to the Claim as the Indemnifying Party shall reasonably request.
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PROCEDURE FOR INDEMNIFICATION--OTHER CLAIMS. A Claim claim for indemnification for any matter not involving a third-third party Claim shall claim may be asserted by a Claim Notice notice from the Indemnified Party to the Indemnifying Party from whom indemnification is sought as set forth below Party. Such notice shall specify the factual basis of the claim and must within the Indemnification Time Period:
(a) If any Seller or Buyer believes that it has a non-third-party Claim for indemnification pursuant to this Section 6, it shall submit a Claim Notice amount thereof in reasonable detail to the other party. The Claim Notice from extent then known by such Indemnified Party, but the Indemnified Person shall state with particularity the parties failure to which the Claim relates, the basis for the Claim, together with sufficient facts relating thereto so the Indemnifying Person may reasonably evaluate such Claim, and an estimate of the amount that equals the amount of Liability associated with such Claim. The estimated amount set forth in the Claim Notice shall not be a limitation of the actual amount of the Claim (that is, the Indemnified Person may revise the estimated amount of Liability by notice to notify the Indemnifying Party and thereafter such revised amount shall become the estimated amount of Liability for all purposes under this Agreement) (for purposes of this Section 6.5, such estimated amount of Liability, as may be revised, shall be referred to as the "Liability Amount").
(b) If will not relieve the Indemnifying Party disputes either of any liability that it may have to any Indemnified Party, except where (and then only to the validity, amount or calculation of the Claim and/or the Liability Amount, extent that) the Indemnifying Party shall give written notice of such dispute to is actually prejudiced by the Indemnified Person within Party’s failure to give such notice. The Indemnifying Party shall have thirty (30) days after receipt to object to such claim for indemnification by delivery of a written notice of such objection to the Indemnified Party. Failure to timely so object shall constitute a final and binding acceptance of the Claim Notice from the Indemnified Person to claim for indemnification by the Indemnifying Party. If (i) an objection is timely delivered to the Indemnified Party by the Indemnifying Party, and the dispute is not resolved by the Indemnified Party and the Indemnifying Party fails to respond to the Claim Notice within thirty ten (3010) days after from the delivery to it of date the Claim NoticeIndemnified Party receives such objection, or (ii) the Indemnified Party and the Indemnifying Party notifies shall have twenty (20) days to attempt to settle such dispute by mediation before a single mediator in New York, New York. In the event the disputed indemnification claim is not resolved by mediation within such time period, the Indemnified Person in writing that there is no dispute with respect to the Claim Party and the Liability Amount, then the Indemnified Person Indemnifying Party shall be entitled to recover from pursue any available remedies to obtain a resolution of the disputed Indemnification Claim. Upon determination of the amount of an indemnification claim, whether by agreement between the Indemnifying Party such Liability Amount. If and the Indemnifying Indemnified Party has asserted that or by other final adjudication, the amount of Claim is less than the Liability Amount, then the Indemnifying Party such indemnification claim shall notify the Indemnified Person, in writing, be paid within ten (10) days of the portion of the Liability Amount that it does not dispute, and the Indemnified Person shall be entitled to recover from the Indemnifying Party the undisputed portion of the Liability Amount thereof, without prejudice to the Indemnifying Party's right to challenge, or the Indemnified Person's right to seek collection of, the disputed portion of the Liability Amount thereofdate such amount is finally determined in accordance with this Section 8.5.
(c) The Indemnified Party shall provide to the Indemnifying Party such information with respect to the Claim as the Indemnifying Party shall reasonably request.
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PROCEDURE FOR INDEMNIFICATION--OTHER CLAIMS. A Claim claim for indemnification for any other matter not involving a third-party Claim shall claim may be asserted by a Claim Notice written notice to the Indemnifying Party party from whom indemnification is sought as set forth below and must within the Indemnification Time Period:
(a) If any Seller or Buyer believes that it has a non-third-party Claim for indemnification pursuant to this Section 6, it shall submit a Claim Notice given prior to the other party. The Claim Notice from the Indemnified Person shall state with particularity the parties to which the Claim relates, the basis for the Claim, together with sufficient facts relating thereto so the Indemnifying Person may reasonably evaluate such Claim, and an estimate expiration of the amount that equals indemnification notice period, stating the amount nature of Liability associated with such Claim. The estimated amount set forth claim in the Claim Notice shall not be a limitation of the actual amount of the Claim (that is, the Indemnified Person may revise reasonable detail and indicating the estimated amount of Liability by notice to the Indemnifying Party and thereafter such revised amount shall become the estimated amount of Liability for all purposes under this Agreement) amount, if practicable, but in any event not later than forty-five (for purposes of this Section 6.5, such estimated amount of Liability, as may be revised, shall be referred to as the "Liability Amount").
(b) If the Indemnifying Party disputes either the validity, amount or calculation of the Claim and/or the Liability Amount, the Indemnifying Party shall give written notice of such dispute to the Indemnified Person within thirty (30) days after receipt of the Claim Notice from the Indemnified Person to the Indemnifying Party. If (i) the Indemnifying Party fails to respond to the Claim Notice within thirty (3045) days after the delivery indemnified party becomes aware of such claim (provided that the failure to notify the indemnifying party shall not relieve the indemnifying party of any liability it of the Claim Noticemay have to any indemnified party, or (ii) the Indemnifying Party notifies the Indemnified Person in writing that there is no dispute with respect except to the Claim extent that the indemnifying party demonstrates that the defense of such claim is prejudiced by the indemnified party's failure to give such notice), and the Liability Amountindemnifying party will have a period of ninety (90) days within which to respond to such claim, then the Indemnified Person shall be entitled to recover from the Indemnifying Party such Liability Amount. If the Indemnifying Party has asserted that the amount of Claim is less than the Liability Amount, then the Indemnifying Party shall notify the Indemnified Person, in writing, of specifying the portion of the Liability Amount claim that it is disputed and the basis for such position. If the indemnifying party does not disputerespond within such ninety (90) day period the indemnifying party will be deemed to have accepted such claim (subject to the other provisions of this Article XI). If the indemnifying party responds within such ninety (90) day period, the indemnifying party will be deemed to have accepted and the Indemnified Person shall be entitled to recover from the Indemnifying Party liable for payment of the undisputed portion of the Liability Amount thereofsuch claim, without prejudice if any, on demand (subject to the Indemnifying Party's right to challengeother provisions of this Article XI). If the indemnifying party rejects any portion of such claim, or the Indemnified Person's right indemnified party will be free to seek collection of, the disputed portion enforcement of the Liability Amount thereofits rights to indemnification under this Agreement.
(c) The Indemnified Party shall provide to the Indemnifying Party such information with respect to the Claim as the Indemnifying Party shall reasonably request.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--OTHER CLAIMS. A Claim claim for indemnification for any matter not involving a third-party Claim shall claim may be asserted by a Claim Notice notice to the Indemnifying Party from whom indemnification is sought as set forth below and must within the Indemnification Time Period:sought. 131622973.6 Section 7.2Calculation of Indemnity Payments.
(a) If any Seller or Buyer believes that it has a non-third-party Claim for indemnification pursuant to this Section 6, it shall submit a Claim Notice to the other party. The Claim Notice from the Indemnified Person shall state with particularity the parties to which the Claim relates, the basis for the Claim, together with sufficient facts relating thereto so the Indemnifying Person may reasonably evaluate such Claim, and an estimate of the amount that equals the amount of Liability associated with such Claim. The estimated amount set forth in the Claim Notice shall not be a limitation of the actual amount of the Claim (that is, the Indemnified Person may revise the estimated amount of Liability by notice to the Indemnifying Party and thereafter such revised amount shall become the estimated amount of Liability any Damages for all purposes which indemnification is provided under this Agreement) (for purposes of this Section 6.5, such estimated amount of Liability, as may be revised, Article VII shall be referred net of any amounts recovered or recoverable by the indemnified party (including under insurance policies) with respect to as the "Liability Amount").such Damages.
(b) If an indemnified party recovers an amount from a third party in respect of Damages that are the Indemnifying Party disputes either the validity, amount subject of indemnification hereunder after all or calculation of the Claim and/or the Liability Amount, the Indemnifying Party shall give written notice a portion of such dispute Damages have been paid by an indemnifying party pursuant to this Article VII, then the indemnified party shall promptly remit to the Indemnified Person within thirty indemnifying party the excess (30if any) days after receipt of the Claim Notice from the Indemnified Person to the Indemnifying Party. If (i) (A) the Indemnifying Party fails to respond to amount paid by the Claim Notice within thirty indemnifying party in respect of such Damages plus (30B) days after the delivery to it of amount received by the Claim Notice, or indemnified party from such third party in respect thereof over (ii) the Indemnifying Party notifies full amount of the Indemnified Person in writing Damages. In the event that there is no dispute an indemnified party has any rights against a third party with respect to the Claim and the Liability Amountany Damages that result in a payment by an indemnifying party under this Article VII, then the Indemnified Person such indemnifying party shall be entitled subrogated to recover from such rights to the Indemnifying Party extent of such Liability Amountpayment. If Without limiting the Indemnifying Party has asserted that generality of any other provision hereof, each indemnified party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the amount of Claim is less than the Liability Amount, then the Indemnifying Party shall notify the Indemnified Person, in writing, of the portion of the Liability Amount that it does not disputesubrogation and subordination rights detailed herein, and otherwise cooperate in the Indemnified Person shall be entitled to recover from the Indemnifying Party the undisputed portion prosecution of the Liability Amount thereof, without prejudice to the Indemnifying Party's right to challenge, or the Indemnified Person's right to seek collection of, the disputed portion of the Liability Amount thereofsuch claims.
(c) The Indemnified Each Party shall, and shall cause its respective Affiliates to, take all reasonable steps to mitigate any Damages indemnifiable hereunder upon and after becoming aware of any event that could reasonably be expected to give rise to any Damages. No Party shall provide be entitled to the Indemnifying Party such information any payment, adjustment or indemnification more than once with respect to the Claim as the Indemnifying Party shall reasonably request.same matter.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--OTHER CLAIMS. A Claim for indemnification for any matter not involving a third-party Claim shall be asserted by a Claim Notice to the Indemnifying Party from whom indemnification is sought as set forth below and must within the Indemnification Time Period:
(a) If To make a claim against the Escrow Fund for indemnification under this Article VII, Buyer shall deliver to the Escrow Agent at any Seller time from the date that the Earnout Amount is due and payable to the Termination Date a certificate signed by any officer of Buyer (an “Officer’s Certificate”):
(i) stating that Buyer or Buyer believes any other Indemnified Person has paid or reasonably anticipates that it has will have to pay or incur Damages arising from breach(es) of any representation, warranty, covenant or obligation of any Stockholder under this Agreement which on a non-third-party Claim for indemnification pursuant to this Section 6cumulative basis with all prior Damages exceed $100,000, it shall submit and
(ii) specifying in reasonable detail the individual items of Damages included in the amount so stated, including a Claim Notice to good faith estimate of the other party. The Claim Notice from aggregate dollar amount of such Damages (the Indemnified Person shall state with particularity “Claimed Amount”), the parties to which the Claim relatesdate each such item was paid or incurred, or the basis for the Claim, together with sufficient facts relating thereto so the Indemnifying Person may reasonably evaluate such Claimanticipated liability, and the specific representation, warranty, covenant or obligation alleged to have been breached by an estimate of the amount that equals the amount of Liability associated with such Claim. The estimated amount set forth in the Claim Notice shall not be a limitation of the actual amount of the Claim (that is, the Indemnified Person may revise the estimated amount of Liability by notice to the Indemnifying Party and thereafter such revised amount shall become the estimated amount of Liability for all purposes under this Agreement) (for purposes of this Section 6.5, such estimated amount of Liability, as may be revised, shall be referred to as the "Liability Amount")indemnifying party.
(b) If At the Indemnifying Party disputes either the validitytime of delivery of any Officer’s Certificate to Escrow Agent, amount or calculation of the Claim and/or the Liability Amount, the Indemnifying Party shall give written notice a duplicate copy of such dispute certificate shall be delivered to the Indemnified Person within thirty (30) Stockholder Representative and for a period of 30 days after receipt of the Claim Notice Officer’s Certificate, Escrow Agent shall make no delivery to Buyer from the Indemnified Person Escrow Fund unless Escrow Agent shall have received written authorization from the Stockholder Representative to make such delivery. After the expiration of such 30 day period, Escrow Agent shall make delivery from the Escrow Fund the Claimed Amount, provided that no such payment or delivery may be made if the Stockholder Representative shall object in a written statement to the Indemnifying Party. If (i) claim made in the Indemnifying Party fails Officer’s Certificate, and such statement shall have been delivered to respond Escrow Agent prior to the Claim Notice within thirty (30) days after the expiration of such 30 day period. The Stockholder Representative shall also deliver a copy of such written statement to Buyer concurrently with such delivery to the Escrow Agent. The Escrow Agent shall send a copy of any written notice or communication that it of the Claim Notice, or (ii) the Indemnifying Party notifies the Indemnified Person in writing that there is no dispute with respect receives from Buyer to the Claim Stockholder Representative and the Liability Amount, then the Indemnified Person shall be entitled to recover a copy of any written notice that it receives from the Indemnifying Party Stockholder Representative to Buyer promptly after receipt of such Liability Amount. If the Indemnifying Party has asserted that the amount of Claim is less than the Liability Amount, then the Indemnifying Party shall notify the Indemnified Person, in writing, of the portion of the Liability Amount that it does not dispute, and the Indemnified Person shall be entitled to recover from the Indemnifying Party the undisputed portion of the Liability Amount thereof, without prejudice to the Indemnifying Party's right to challenge, written notice or the Indemnified Person's right to seek collection of, the disputed portion of the Liability Amount thereofcommunication.
(c) The Indemnified Party In case the Stockholder Representative shall provide so object in writing to any claim or claims made in any Officer’s Certificate, the Indemnifying Party such information Stockholder Representative and Buyer shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims within 45 days after Escrow Agent’s receipt of the Claim Stockholder Representative’s written objection to the claim pursuant to Section 7.8(b) (the “Negotiation Period”). If the Stockholder Representative and Buyer should so agree during the Negotiation Period, a memorandum setting forth such agreement (including agreement stipulating the amount owed to the Indemnified Persons (the “Stipulated Amount”) shall be prepared and signed by both parties and shall be furnished to Escrow Agent. Escrow Agent shall be entitled to rely on any such memorandum and distribute the Stipulated Amount (or such lesser amount as may remain in the Indemnifying Party Escrow Fund) from the Escrow Fund to the Buyer within 5 business days of receiving such signed memorandum. If no such agreement has been reached by the end of the Negotiation Period, either Buyer or the Stockholder Representative may demand arbitration of the matter unless the amount of the Damages is at issue in pending litigation with a third party, in which event arbitration shall reasonably requestnot be commenced until such amount is ascertained by settlement or a non-appealable decision of a court of competent jurisdiction or both parties agree to arbitration; and in either such event the matter shall be settled by arbitration conducted by a single arbitrator, selected by mutual agreement of the parties or otherwise in accordance with the then prevailing rules of the American Arbitration Association as adopted by the State of Delaware. Arbitration in accordance with the terms hereof shall be the sole and exclusive monetary remedy of the Indemnified Persons for any indemnification claims and the award by the arbitrator shall be enforceable in any court of competent jurisdiction. The arbitration shall be conducted in Wilmington, Delaware, or such other jurisdiction as agreed to by Buyer and the Stockholder Representative. The written decision of the arbitrator as to the validity and amount of any claim (the “Judgment Amount”) in such Officer’s Certificate shall be binding and conclusive upon the parties to this Agreement, and notwithstanding anything in Section 7.8(b) hereof, Escrow Agent shall be entitled to distribute to the Buyer the Judgment Amount (or such lesser amount as may remain in the Escrow Fund) from the Escrow Fund within 5 business days of receiving such written decision. Notwithstanding the foregoing, any party shall be entitled to seek injunctive relief or other equitable remedies from any court of competent jurisdiction that may be available to such party under the Purchase Agreement. Fifty percent (50%) of the costs of such arbitration (including the fees of the arbitrator, but excluding any individual legal or other related fees incurred by either Buyer or the Stockholders) shall be paid by Buyer and fifty percent (50%) of such expenses shall be paid by the Stockholders.
(d) On the Termination Date, all amounts then remaining in the Escrow Fund shall be delivered to the persons designated on Schedule A; provided, however, that an amount, which, in the reasonable judgment of Buyer, subject to the objection of the Stockholder Representative and the subsequent negotiation and arbitration of the matter in the manner provided in Section 4 hereof, is necessary to satisfy any unsatisfied claims specified in any Officer’s Certificate delivered to Escrow Agent prior to the Termination Date with respect to facts and circumstances existing on or prior to the Termination Date shall remain in the Escrow Fund until such claims have been resolved. As soon as all such claims have been resolved, Escrow Agent shall deliver to the persons designated on Schedule A all amounts then remaining in the Escrow Fund and not required to satisfy such claims. Deliveries of any remaining amounts in the Escrow Fund to the persons designated on Schedule A pursuant to this Section 7.8 shall be made to an account designated by the Stockholder Representative for allocation among the persons as specified in Column 6 of Schedule A.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--OTHER CLAIMS. A Claim claim for indemnification for any matter not involving a third-third party Claim shall claim may be asserted by a Claim Notice delivery of written notice to the Indemnifying Party party from whom indemnification is sought as set forth below and must within the Indemnification Time Period:
sought, which notice shall (ai) If any Seller state that such indemnified party has paid, sustained, incurred, or Buyer believes properly accrued, or reasonably anticipates that it has will have to pay, sustain, incur, or accrue indemnifiable Damages as a non-third-party Claim for indemnification pursuant to this Section 6result of facts, it shall submit a Claim Notice circumstances, events or occurrences existing prior to the other party. The Claim Notice from date of such written notice, (ii) state the Indemnified Person shall state with particularity amount of such indemnifiable Damages to the parties extent known at the time of such written notice and (iii) describe in reasonable detail, to which the Claim relatesextent known, the indemnifiable Damages included in the amount so stated, including the date each such item was paid, sustained, incurred or properly accrued, or the basis for the Claim, together with sufficient facts relating thereto so the Indemnifying Person may reasonably evaluate such Claimanticipated liability, and an estimate the nature of the amount that equals claim to which such indemnifiable Damages are related. Upon receipt by the amount indemnifying party of Liability associated with such Claim. The estimated amount set forth in the Claim Notice shall not be a limitation of the actual amount of the Claim (that iswritten notice, the Indemnified Person may revise the estimated amount of Liability by indemnifying party shall have thirty (30) days to review such notice for indemnification and state whether it has any objections to the Indemnifying Party and thereafter such revised amount shall become the estimated amount of Liability for all purposes under this Agreement) (for purposes of this Section 6.5, such estimated amount of Liability, as may be revised, shall be referred to as the "Liability Amount").
(b) matters stated therein. If the Indemnifying Party disputes either the validity, amount indemnifying party has not objected in writing to any claim or calculation of the Claim and/or the Liability Amount, the Indemnifying Party shall give written claims made in such notice of such dispute to the Indemnified Person for indemnification within thirty (30) days after of receipt of such notice of indemnification, the Claim Notice from amount of such Damages shall thereupon become payable to such indemnified party by such indemnifying party. In the Indemnified Person event Buyer reasonably believes a claim pursuant to this Section 10.9 may result in a demand against the Escrow Fund, it shall deliver the written notice claiming indemnification to Stockholders’ Representative and such notice shall be deemed to be delivery of the notice to the Securityholders; provided, however, that in the event indemnification is being sought hereunder directly from a Seller Indemnifying Party, such notice shall be delivered to such Seller Indemnifying Party. If (i) the Indemnifying Party fails to respond to the Claim Notice within thirty (30) days after the delivery to it of the Claim Notice, or (ii) the Indemnifying Party notifies the Indemnified Person in writing that there is no dispute with respect to the Claim and the Liability Amount, then the Indemnified Person shall be entitled to recover from the Indemnifying Party such Liability Amount. If the Indemnifying Party has asserted that the amount of Claim is less than the Liability Amount, then the Indemnifying Party shall notify the Indemnified Person, in writing, of the portion of the Liability Amount that it does not dispute, and the Indemnified Person shall be entitled to recover from the Indemnifying Party the undisputed portion of the Liability Amount thereof, without prejudice to the Indemnifying Party's right to challenge, or the Indemnified Person's right to seek collection of, the disputed portion of the Liability Amount thereof.
(c) The Indemnified Party shall provide to the Indemnifying Party such information with respect to the Claim as the Indemnifying Party shall reasonably request.ARTICLE XI
Appears in 1 contract
Sources: Merger Agreement