Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, as applicable, Parent determines in good faith that any Indemnitee has a bona fide claim for indemnification pursuant to this Article 10, Parent may deliver to the Shareholder Representative a certificate signed by any officer of Parent (any certificate delivered in accordance with the provisions of this Section 10.04(a) an “Officer’s Claim Certificate”): (i) stating that an Indemnitee has a claim for indemnification pursuant to this Article 10; (ii) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and (iii) specifying in reasonable detail (based upon the information then possessed by Parent) the material facts known to the Indemnitee giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and materially prejudiced thereby. (b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder Representative, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Indemnitee). (c) If the Shareholder Representative in good faith objects to any claim made by Parent in any Officer’s Claim Certificate, then the Shareholder Representative shall deliver a written notice (a “Claim Dispute Notice”) to Parent during the thirty (30)-day period commencing upon receipt by the Shareholder Representative of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent in the Officer’s Claim Certificate. If the Shareholder Representative does not deliver a Claim Dispute Notice to Parent prior to the expiration of such thirty (30)-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor for purposes of this Article 10 on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Escrow Fund, then Parent may direct the Escrow Agent to deliver cash from the General Escrow Fund to Parent in accordance with this Section 10.04. (d) If the Shareholder Representative delivers a Claim Dispute Notice, then Parent and the Shareholder Representative shall attempt in good faith to resolve any such objections raised by the Shareholder Representative in such Claim Dispute Notice. If Parent and the Shareholder Representative agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent and the Shareholder Representative shall be prepared and signed by both parties and, if cash remains in the General Escrow Fund, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash from the General Escrow Fund in accordance with the terms of such memorandum. (e) If no such resolution can be reached during the forty-five (45)-day period following Parent’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty-five (45)-day period, either Parent or the Shareholder Representative may bring suit to resolve the objection in accordance with Sections 11.09, 11.10 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdiction.
Appears in 2 contracts
Sources: Merger Agreement (Mellanox Technologies, Ltd.), Merger Agreement
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, as applicable, Parent Purchaser determines in good faith that any Indemnitee it has a bona fide claim for indemnification pursuant to this Article 10, Parent Purchaser may deliver to the Shareholder Representative Seller a certificate signed by any officer of Parent Purchaser (any certificate delivered in accordance with the provisions of this Section 10.04(a) an “Officer’s Claim Certificate”):
(i) stating that an Indemnitee the Purchaser has a claim for indemnification pursuant to this Article 10;
(ii) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee the Purchaser claims to be entitled to receive, which shall be the amount of Damages such Indemnitee the Purchaser claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by ParentPurchaser) the material facts known to the Indemnitee Purchaser giving rise to such claim. .
(iv) No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemniteethe Purchaser’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and Seller is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder Representative, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Indemnitee).
(c) If the Shareholder Representative Seller in good faith objects to any claim made by Parent Purchaser in any Officer’s Claim Certificate, then the Shareholder Representative Seller shall deliver a written notice (a “Claim Dispute Notice”) to Parent Purchaser during the thirty (30)-day 30-day period commencing upon receipt by the Shareholder Representative Seller of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent Purchaser in the Officer’s Claim Certificate. If the Shareholder Representative Seller does not deliver a Claim Dispute Notice to Parent Purchaser prior to the expiration of such thirty (30)-day 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in ParentPurchaser’s favor for purposes of this Article 10 on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Escrow Fund, then Parent may direct the Escrow Agent to deliver cash from the General Escrow Fund to Parent in accordance with this Section 10.04Certificate.
(d) If the Shareholder Representative Seller delivers a Claim Dispute Notice, then Parent Purchaser and the Shareholder Representative Seller shall attempt in good faith to resolve any such objections raised by the Shareholder Representative Seller in such Claim Dispute Notice. If Parent Purchaser and the Shareholder Representative Seller agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent Purchaser and the Shareholder Representative Seller shall be prepared and signed by both parties and, if cash remains in the General Escrow Fund, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash from the General Escrow Fund in accordance with the terms of such memorandumparties.
(ec) If no such resolution can be reached during the forty45-five (45)-day day period following ParentPurchaser’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty45-five (45)-day day period, either Parent Purchaser or the Shareholder Representative Seller may bring suit to resolve the objection in accordance with Sections 11.07, 11.08 and 11.09, 11.10 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative Purchaser and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewithSeller. Judgment upon any award rendered by the trial court may be entered in any court having jurisdiction.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Esports Entertainment Group, Inc.), Stock Purchase Agreement (Esports Entertainment Group, Inc.)
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date Purchaser or the General Expiration DateSellers, as applicable, Parent determines in good faith that any Indemnitee has a bona fide claim for indemnification pursuant to this Article 10, Parent Purchaser or Sellers, as applicable, may deliver to the Shareholder Representative other Party (with copy to the Escrow Agent under the Escrow Agreement if a claim is being made against the Indemnity Escrow) a certificate signed by any officer of Parent Purchaser or by a representative of Sellers, as applicable (any certificate delivered in accordance with the provisions of this Section 10.04(a10.05(a) an “Officer’s Claim Certificate”):
(i) stating that an Indemnitee has a claim for indemnification pursuant to this Article 10;
(ii) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by ParentPurchaser or Sellers, as applicable) the material facts known to the Indemnitee giving rise to such claim. .
(iv) No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and indemnifying Party is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder RepresentativeIf Sellers or Purchaser, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Indemnitee).
(c) If the Shareholder Representative as applicable, in good faith objects object to any claim made by Parent the other Party in any Officer’s Claim Certificate, then the Shareholder Representative Sellers or Purchaser, as applicable, shall deliver a written notice (a “Claim Dispute Notice”) to Parent the other Party during the thirty (30)-day 30-day period commencing upon receipt by the Shareholder Representative Sellers or Purchaser ,as applicable,of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent Purchaser or Sellers ,as applicable, in the Officer’s Claim Certificate. If the Shareholder Representative does not deliver a Claim Dispute Notice to Parent prior to the expiration of such thirty (30)-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor for purposes of this Article 10 on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Escrow Fund, then Parent may direct the Escrow Agent to deliver cash from the General Escrow Fund to Parent in accordance with this Section 10.04.
(dc) If the Shareholder Representative delivers Sellers or Purchaser, as applicable, deliver a Claim Dispute Notice, then Parent Purchaser and the Shareholder Representative Sellers shall attempt in good faith to resolve any such objections raised by the Shareholder Representative Sellers or Purchaser, as applicable,in such Claim Dispute Notice. If Parent Purchaser and the Shareholder Representative Sellers agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent Purchaser and the Shareholder Representative Sellers shall be prepared and signed by both parties and, if cash remains in the General Escrow Fund, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash from the General Escrow Fund in accordance with the terms of such memorandumparties.
(ed) If no such resolution can be reached during the forty45-five (45)-day day period following ParentPurchaser’s or Sellers’, as applicable, receipt of a given Claim Dispute Notice, then upon the expiration of such forty45-five (45)-day day period, either Parent Purchaser or the Shareholder Representative Sellers may bring suit to resolve the objection in accordance with Sections 11.07, 11.08 and 11.09, 11.10 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdiction.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Esports Entertainment Group, Inc.), Equity Purchase Agreement (Esports Entertainment Group, Inc.)
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, as applicable, Parent determines in good faith that any Indemnitee has a bona fide claim for indemnification pursuant to this Article 10, Parent may deliver to the Shareholder Representative Escrow Agent a certificate signed by any officer of Parent (any certificate delivered in accordance with the provisions of this Section 10.04(a) an “Officer’s Claim Certificate”):
(i) stating that an Indemnitee has a claim for indemnification pursuant to this Article 10;
(ii) to the extent possible, containing including a good faith faith, non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or suffersuffer (the “Claim Amount”) and specifying in reasonable detail each individual item of loss included in the Claim Amount and the date such item was paid (if paid); and
(iii) specifying in reasonable detail (based upon the information then possessed by Parent) the material facts known to the Indemnitee giving rise to such claim. No Parent shall use commercially reasonable efforts to provide any Officer’s Claim Certificate promptly; provided, however, that no delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder RepresentativeEscrow Agent, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent Stockholder Representative by or on behalf of Parent (on behalf of itself or any other Indemnitee).
(c) If the Shareholder Stockholder Representative in good faith objects to any claim made by Parent in any Officer’s Claim Certificate, then the Shareholder Stockholder Representative shall deliver a written notice (a “Claim Dispute Notice”) to Parent and Escrow Agent during the thirty (30)-day 30-day period commencing upon receipt by the Shareholder Stockholder Representative of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth the amount in dispute (the “Pending Claims Amount”) and in reasonable detail the principal basis for the dispute of any claim made by Parent in the Officer’s Claim Certificate. If the Shareholder Stockholder Representative delivers a Claim Dispute Notice, then the Escrow Agent shall not release any Pending Claims Amount prior to the receipt by the Escrow Agent of (i) a joint written instruction from the Stockholder Representative and Parent or (ii) a decision of a trial court as set forth in Section 10.04(e), in each case, instructing Escrow Agent to release such Pending Claims Amount. If the Stockholder Representative does not deliver a Claim Dispute Notice to Parent prior to the expiration of such thirty (30)-day 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor for purposes of this Article 10 on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Escrow Fund, then Parent may direct the Escrow Agent to deliver cash equal to the Claim Amount from the General Escrow Fund to Parent in accordance with this Section 10.04the Indemnitee and/or other payee(s), as set forth on such instruction.
(d) If the Shareholder Stockholder Representative delivers a Claim Dispute Notice, then Parent and the Shareholder Stockholder Representative shall attempt in good faith to resolve any such objections raised by the Shareholder Stockholder Representative in such Claim Dispute Notice. If Parent and the Shareholder Stockholder Representative agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent and the Shareholder Representative such agreement shall be prepared and signed by both parties and, if cash remains in the General Escrow Fund, and Parent and Stockholder Representative shall promptly delivered deliver a joint written instruction to the Escrow Agent directing the Escrow Agent to distribute cash from the General Escrow Fund in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the forty45-five (45)-day day period following Parent’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty45-five (45)-day day period, either Parent or the Shareholder Stockholder Representative may bring suit to resolve the objection in accordance with Sections 11.0911.08, 11.10 11.09 and 11.1111.10. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Stockholder Representative and the Company ShareholdersStockholders, and Parent and the Shareholder Stockholder Representative shall promptly direct deliver a joint written instruction to the Escrow Agent directing the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdiction.
(f) In order to satisfy any indemnification obligations of the Indemnitors hereunder, Parent and the other Indemnitees shall have the right to recover Damages, subject to the limitations set forth in this Article 10, from, at the election of Parent or such Indemnitee(s), (i) the Escrow Fund to the extent available, (ii) any amount available for set-off with respect to a claim for indemnification from any Earnout Payments pursuant to Section 10.03(d) or (iii) any combination thereof; provided, however, that nothing set forth in this Section 10.04(f) shall have the effect of increasing the aggregate liability of any Indemnitor for indemnification claims pursuant to this Article 10 in excess of ten percent (10%) of the amount of proceeds actually paid to such Indemnitor except with respect to fraud or intentional misrepresentation.
Appears in 1 contract
Sources: Merger Agreement (Care.com Inc)
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, an Indemnitee (as applicable, Parent defined below) determines in good faith that any Indemnitee it has a bona fide claim for indemnification pursuant to this Article 10IX and the Indemnitee intends to make such indemnification claim, then Parent (in the case of any indemnification claim pursuant to Section 9.2(a)) or the Equityholders Representative (on behalf of the Equityholders) (in the case of any indemnification claim pursuant to Section 9.2(b)), as the case may be, shall promptly thereafter deliver to the Shareholder Equityholders Representative or Parent, as the case may be, a certificate signed by any officer of Parent (any certificate delivered in accordance with the provisions of this Section 10.04(a) an 9.4(a), a “Officer’s Claim Certificate”):
(i) stating that an the Indemnitee has a claim for indemnification pursuant to this Article 10IX;
(ii) to the extent possible, containing contain a good faith faith, non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by Parent) the material facts known to the Indemnitee giving rise to such claimclaim and the legal bases therefor (including a reasonably detailed summary of the relevant representations, warranties, covenants and/or other item of indemnification under this Agreement). No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and Indemnitor (as defined below) is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder Equityholders Representative, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Parent Indemnitee).
(c) If the Shareholder Representative in good faith objects to any claim made by Parent in any Officer’s Claim Certificate, then the Shareholder Representative shall deliver a written notice (a “Claim Dispute Notice”) to Parent during the thirty (30)-day period commencing upon receipt by the Shareholder Representative of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent in the Officer’s Claim Certificate. If the Shareholder Representative does not deliver a Claim Dispute Notice to Parent prior to the expiration of such thirty (30)-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor for purposes of this Article 10 on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Escrow Fund, then Parent may direct the Escrow Agent to deliver cash from the General Escrow Fund to Parent in accordance with this Section 10.04.
(d) If the Shareholder Representative delivers a Claim Dispute Notice, then Parent and the Shareholder Equityholders Representative shall attempt in good faith to resolve any such objections raised by that the Shareholder Equityholders Representative may raise in response to such Claim Dispute NoticeCertificate. If Parent and the Shareholder Equityholders Representative agree to a resolution of such objectionobjections, then a memorandum setting forth the matters conclusively determined by Parent and the Shareholder Equityholders Representative shall be prepared and signed by both parties and, if cash remains in the General Escrow Fund, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash from the General Escrow Fund in accordance with the terms of such memorandumparties.
(ed) If no such resolution can be reached during the forty45-five (45)-day day period following Parent’s receipt of a given Claim Dispute NoticeCertificate hereunder, then upon the expiration of such forty45-five (45)-day day period, either Parent or the Shareholder Equityholders Representative may bring suit to resolve the objection indemnification claim in accordance with Sections 11.09, 11.10 Section 10.11 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdictionSection 10.12.
Appears in 1 contract
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date An Indemnified Person who requests reimbursement from or the General Expiration Date, as applicable, Parent determines in good faith that any Indemnitee has indemnification from a bona fide claim for indemnification pursuant to party under this Article 1010 (a “Claim”) shall do so with a written statement (a “Claim Notice”) of the reimbursement or other indemnification which is requested. The Claim Notice must describe the subject matter of the Claim in reasonable detail. In the event that a Seller disputes the amount of the Claim Notice for purposes of determining the amount of Claims which are pending, Parent then that Seller may deliver elect to the Shareholder Representative a certificate signed by any officer of Parent (any certificate delivered in accordance with the provisions commence arbitration proceedings under Section 11.11 of this Section 10.04(a) an “Officer’s Claim Certificate”):
(i) stating that an Indemnitee has a claim for indemnification pursuant to this Article 10;
(ii) to Agreement on the extent possible, containing a good faith non-binding, preliminary estimate limited subject of the amount to of the Claim which such Indemnitee claims to should be entitled to receive, which shall be reserved against the amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by Parent) the material facts known to the Indemnitee giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and materially prejudiced therebyBasket Cap.
(b) At In the time of delivery of any Officer’s event an Indemnified Person presents a Claim Certificate against the Sellers under this Article 10, such Indemnified Person shall have the following exclusive remedies:
(i) To the extent that the Damage covered by the indemnities in this Article 10 represents a third party claim, the Indemnified Party must tender that claim to the Shareholder Representative, a duplicate copy of such Officer’s Claim Certificate shall be delivered to Sellers and follow the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Indemnitee)procedures stated in Section 10.9.
(cii) If To the Shareholder Representative in good faith objects to any claim made by Parent in any Officer’s Claim Certificate, then extent that the Shareholder Representative shall deliver a written notice (a “Claim Dispute Notice”) to Parent during the thirty (30)-day period commencing upon receipt Damage covered by the Shareholder Representative of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth indemnities in reasonable detail the principal basis for the dispute of any claim made by Parent in the Officer’s Claim Certificate. If the Shareholder Representative does not deliver a Claim Dispute Notice to Parent prior to the expiration of such thirty (30)-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor for purposes of this Article 10 on represents a financial loss incurred by the terms set forth Buyer as to which recovery can be made from insurance policies held by the Buyer, including policies of title insurance, then Buyer must use commercially reasonable efforts to recover from that insurance policy before exercising Buyer’s set-off rights under Section 10.8; provided, however, that Buyer may give Sellers a Claim Notice regarding that Damage to preserve Buyer’s rights against Sellers in the Officerevent that the policy or policies of insurance do not repay the Damages in full; and provided, however, that Buyer shall not be required to commence litigation or assign a claim to a collection agency as part of those efforts to recover from any insurance policy.
(iii) To the extent that the Damage covered by the indemnities in this Article 10 represents a financial loss incurred by the Buyer as to which a reserve has been specifically established by Centrum Acquisition in its financial records prior to November 10, 2003 or the Effective Time (whichever reserve is greater), then Buyer must apply that reserve to the Damage incurred before exercising Buyer’s Claim Certificate and set-off rights under Section 10.8.
(iv) To the extent that the Damage covered by the indemnities in this Article 10 represents a financial loss incurred by Buyer as to which full recovery can not be made under either clauses (ii) if cash remains in the General Escrow Fundor (iii) above, then Parent may direct Buyer must exercise its rights to recover against the Amended and Restated $5,000,000 Promissory Notes under Section 10.8 and the Escrow Agent Agreement (as defined below), with no right to deliver cash recover personally from any Seller unless the General Escrow Fund to Parent in accordance with this Section 10.04Damage results from a Breach or an Alleged Breach which constitutes fraud on the part of that Seller.
(dv) If the Shareholder Representative delivers a Claim Dispute Notice, then Parent and the Shareholder Representative shall attempt in good faith to resolve any such objections raised by the Shareholder Representative in such Claim Dispute Notice. If Parent and the Shareholder Representative agree to a resolution The obligations of such objection, then a memorandum setting forth the matters conclusively determined by Parent and the Shareholder Representative shall be prepared and signed by both parties and, if cash remains in the General Escrow Fund, promptly delivered Sellers under this Article 10 are subject to the Escrow Agent directing limitations stated in Section 10.6 and in Section 10.7, including the Escrow Agent to distribute cash limitations in Section 10.7(e) that restrict Buyer from recovering from Sellers absent the General Escrow Fund in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the forty-five (45)-day period following Parent’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty-five (45)-day period, either Parent or the Shareholder Representative may bring suit to resolve the objection in accordance with Sections 11.09, 11.10 and 11.11. The decision occurrence of the trial court as to the validity and amount of any claim actions identified in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdictionSection 10.7(e).
Appears in 1 contract
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, an Indemnitee (as applicable, Parent defined below) determines in good faith that any Indemnitee it has a bona fide claim for indemnification pursuant to this Article 10XII and the Indemnitee intends to make such indemnification claim, Parent then Buyer (in the case of any indemnification claim pursuant to 12.2(a)) or the Holder Representative (on behalf of the Pre-Closing Holders) (in the case of any indemnification claim pursuant to 12.2(b)), as the case may be, shall promptly thereafter deliver to the Shareholder Holder Representative or Buyer, as the case may be, a certificate signed by any officer of Parent (any certificate delivered in accordance with the provisions of this Section 10.04(a) an 12.4(a), a “Officer’s Claim Certificate”):
(i) stating that an the Indemnitee has a claim for indemnification pursuant to this Article 10XII;
(ii) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by Parent) the material facts known to the Indemnitee giving rise to such claimclaim and the legal bases therefor (including a reasonably detailed summary of the relevant representations, warranties, covenants and/or other item of indemnification under this Agreement). No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and Indemnitor (as defined below) is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder Representative, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Indemnitee).
(c) If the Shareholder Holder Representative in good faith or Buyer, as the case may be, objects to any claim made by Parent in any Officer’s Claim Certificate, then the Shareholder Holder Representative or Buyer, as the case may be, shall deliver a written notice (a “Claim Dispute Notice”) to Parent Buyer or the Holder Representative, as the case may be, during the thirty (30)-day 30-day period commencing upon receipt by the Shareholder Holder Representative or Buyer, as the case may be, of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent in the applicable Officer’s Claim Certificate. If the Shareholder Holder Representative or Buyer, as the case may be, does not deliver a Claim Dispute Notice to Parent hereunder prior to the expiration of such thirty (30)-day 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor of the applicable Indemnitee for purposes of this Article 10 XII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Escrow Fund, then Parent may direct the Escrow Agent to deliver cash from the General Escrow Fund to Parent in accordance with this Section 10.04Certificate.
(dc) If the Shareholder Representative delivers a Claim Dispute NoticeNotice is properly delivered hereunder, then Parent Buyer and the Shareholder Holder Representative shall attempt in good faith to resolve any such objections raised by the Shareholder Representative in such Claim Dispute Notice. If Parent Buyer and the Shareholder Holder Representative agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent Buyer and the Shareholder Holder Representative shall be prepared and signed by both parties and, if cash remains in the General Escrow Fund, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash from the General Escrow Fund in accordance with the terms of such memorandumparties.
(ed) If no such resolution can be reached during the forty45-five (45)-day day period following Parent’s receipt of a given Claim Dispute NoticeNotice hereunder, then upon the expiration of such forty45-five (45)-day day period, either Parent Buyer or the Shareholder Holder Representative may bring suit to resolve the objection in accordance with Sections 11.09, 11.10 Section 13.13 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdictionSection 13.13(c).
Appears in 1 contract
Claims and Procedures. (a) If at any time prior to the FR SOL Expiration Date, the IPR Intermediate Expiration Date or the General Expiration Date, as applicable, Parent determines in good faith that any Indemnitee has a bona fide claim for indemnification pursuant to this Article 10, Parent may deliver to the Shareholder Equityholder Representative a certificate signed by any officer of Parent (any certificate delivered in accordance with the provisions of this Section 10.04(a) an “Officer’s Claim Certificate”):
(i) stating that an Indemnitee has a claim for indemnification pursuant to this Article 10;
(ii) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could would reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by Parent) the material facts known to the Indemnitee giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the SOL Expiration Date, Intermediate Expiration Date or General Expiration Date, as applicable, shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and materially prejudiced thereby. From and after the delivery of any Officer’s Claim Certificate, Parent shall provide the Equityholder Representative and its Representatives with reasonable access to the books and records of the Surviving Corporation (or any successor thereto) for the purpose of enabling the Equityholder Representative and its Representatives to review the Officer’s Claim Certificate and identify any dispute related thereto.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder Equityholder Representative, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Indemnitee).
(c) If the Shareholder Equityholder Representative in good faith objects to any claim made by Parent in any Officer’s Claim Certificate, then the Shareholder Equityholder Representative shall deliver a written notice (a “Claim Dispute Notice”) to Parent during the thirty (30)-day 30-day period commencing upon receipt by the Shareholder Equityholder Representative of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent in the Officer’s Claim Certificate. If the Shareholder Equityholder Representative does not deliver a Claim Dispute Notice to Parent prior to the expiration of such thirty (30)-day 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor for purposes of this Article 10 on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Indemnity Escrow Fund, then Parent may direct in writing, with a copy of such instruction delivered to the Equityholder Representative, the Escrow Agent to deliver cash from the General Indemnity Escrow Fund to Parent in accordance with this Section 10.04.
(d) If the Shareholder Equityholder Representative delivers a Claim Dispute Notice, then Parent and the Shareholder Equityholder Representative shall attempt in good faith to resolve any such objections raised by the Shareholder Equityholder Representative in such Claim Dispute Notice. If Parent and the Shareholder Equityholder Representative agree to a resolution of such objection, then a memorandum written settlement agreement setting forth the matters conclusively determined by Parent and the Shareholder Equityholder Representative shall be prepared and signed by both parties and, if cash remains in the General Indemnity Escrow Fund, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash from the General Indemnity Escrow Fund in accordance with the terms of such memorandumwritten settlement agreement.
(e) If no such resolution can be reached during the forty45-five (45)-day day period following Parent’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty45-five (45)-day day period, either Parent or the Shareholder Equityholder Representative may bring suit to resolve the objection in accordance with Sections 11.09, 11.10 and 11.11. .
(f) The decision Indemnitors and Indemnitees acknowledge and agree that all Damages shall be recovered (i) first, from the Indemnity Escrow Fund and (ii) second, if the aggregate of the trial court as to the validity and amount of all unsatisfied claims in any claim in such Officer’s Claim Certificate shall be nonappealableClaims Certificates exceeds the then-existing Indemnity Escrow Fund, binding and conclusive upon directly from the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act Indemnitors in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdictionSection 10.03(b).
Appears in 1 contract
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date Any Parent Indemnitee or the General Expiration Date, as applicable, Parent determines in good faith that any Securityholder Indemnitee has a bona fide making claim for indemnification pursuant to this Article 10, shall promptly notify the Securityholder Representative, in the case of a claim by a Parent may deliver to Indemnitee, or the Shareholder Representative Parent, in the case of a certificate signed claim by any officer a Securityholder Indemnitee, in writing of Parent such claim (any certificate delivered in accordance with the provisions of this Section 10.04(a) an a “Officer’s Claim Certificate”):
(i) stating that an such Indemnitee has a claim for indemnification pursuant to this Article 10;
(ii) to the extent possiblereasonably practicable, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the |US-DOCS\123754940.16|| amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by Parent) the material facts known to the such Indemnitee giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder Representative, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Indemnitee).
(c) If the Shareholder Securityholder Representative or Parent, as applicable, in good faith objects to any claim made by Parent the applicable Indemnitee(s) in any Officer’s Claim Certificate, then the Shareholder Securityholder Representative or Parent, as applicable, shall deliver a written notice (a “Claim Dispute Notice”) to Parent the Securityholder Representative or Parent, as applicable, during the thirty (30)-day 30-day period commencing upon receipt by the Shareholder Securityholder Representative or Parent, as applicable, of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent the Securityholder Representative or Parent, as applicable, in the Officer’s Claim Certificate. If the Shareholder Securityholder Representative or Parent, as applicable, does not deliver a Claim Dispute Notice to Parent the Securityholder Representative or Parent, as applicable, prior to the expiration of such thirty (30)-day 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s the applicable Indemnitees’ favor for purposes of this Article 10 on the terms set forth in the Officer’s Claim Certificate and Certificate, (ii) in the case of a claim by a Parent Indemnitee, if cash any amount remains in the General Escrow Fund, then Parent may direct and the Securityholder Representative shall provide a joint written instruction to the Escrow Agent instructing it to deliver cash distribute an amount sufficient to satisfy any Damages to which a Parent Indemnitee entitled pursuant to Article 10 as instructed by Parent and the Securityholder Representative from the General Escrow Fund Fund, (iii) in the case of a claim by a Parent Indemnitee, in the event the Escrow Amount is insufficient to satisfy such Damages, then Parent may recover any unsatisfied Damages directly against the Securityholder Indemnitors in accordance with the terms of this Agreement, and (iv) in the case of a claim by a Securityholder Indemnitee, then the Securityholder Indemnitee(s) may recover the Damages against Parent in accordance with this Section 10.04Agreement.
(dc) If the Shareholder Representative applicable Party delivers a Claim Dispute Notice, then Parent and the Shareholder Securityholder Representative shall attempt in good faith to resolve any such objections raised by in the Shareholder Representative in such applicable Claim Dispute Notice. If Parent and the Shareholder Securityholder Representative agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent and the Shareholder Securityholder Representative shall be prepared and signed by both parties andParties. In the case of a claim by a Parent Indemnitee, if cash any amount remains in the General Escrow Fund, promptly delivered then Parent and the Securityholder Representative shall provide a joint written instruction to the Escrow Agent directing instructing it to distribute an amount in accordance with the terms of such memorandum as instructed by Parent and the Security Representative from the Escrow Agent to distribute cash from Fund. In the General case of a claim by a Parent Indemnitee, in the event the Escrow Fund is insufficient to satisfy such Damages, then Parent may recover any unsatisfied Damages directly against the Securityholder Indemnitors in accordance with the terms of such memorandum. In the case of a claim by a Securityholder Indemnity, then the Securityholder Indemnitee(s) may recover the Damages against Parent in accordance with the terms of such memorandum.
(ed) If no such resolution can be reached during the forty45-five (45)-day day period following Parentthe applicable Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty45-five (45)-day day period, either Parent or the Shareholder Securityholder Representative may bring suit to resolve the objection in accordance with Sections 11.09, 11.10 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewith|US-DOCS\123754940.16|| this Agreement. Judgment upon any award rendered by the trial court may be entered in any court having jurisdiction.
Appears in 1 contract
Sources: Merger Agreement (Skillz Inc.)
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, an Indemnitee (as applicable, Parent defined below) determines in good faith that any Indemnitee it has a bona fide claim for indemnification pursuant to this Article 10IX and the Indemnitee intends to make such indemnification claim, then Parent (in the case of any indemnification claim pursuant to Section 9.2(a)) or the Equityholders Representative (on behalf of the Equityholders) (in the case of any indemnification claim pursuant to Section 9.2(b)), as the case may be, shall promptly thereafter deliver to the Shareholder Equityholders Representative or Parent, as the case may be, a certificate signed by any officer of Parent (any certificate delivered in accordance with the provisions of this Section 10.04(a) an 9.4(a), a “Officer’s Claim Certificate”):
): (i) stating that an the Indemnitee has a claim for indemnification pursuant to this Article 10;
IX; (ii) to the extent possible, containing contain a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
and (iii) specifying in reasonable detail (based upon the information then possessed by Parent) the material facts known to the Indemnitee giving rise to such claimclaim and the legal bases therefor (including a reasonably detailed summary of the relevant representations, warranties, covenants and/or other item of indemnification under this Agreement). No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and Indemnitor (as defined below) is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder Representative, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Indemnitee).
(c) If the Shareholder Equityholders Representative in good faith or Parent, as the case may be, objects to any claim made by Parent in any Officer’s Claim Certificate, then the Shareholder Equityholders Representative or Parent, as the case may be, shall deliver a written notice (a “Claim Dispute Notice”) to Parent or the Equityholders Representative, as the case may be, during the thirty (30)-day 30-day period commencing upon receipt by the Shareholder Equityholders Representative or Parent, as the case may be, of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent in the Officer’s applicable Claim Certificate. If the Shareholder Equityholders Representative or Parent, as the case may be, does not deliver a Claim Dispute Notice to Parent hereunder prior to the expiration of such thirty (30)-day 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor of the applicable Indemnitee for purposes of this Article 10 IX on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Escrow Fund, then Parent may direct the Escrow Agent to deliver cash from the General Escrow Fund to Parent in accordance with this Section 10.04Certificate.
(dc) If the Shareholder Representative delivers a Claim Dispute NoticeNotice is properly delivered hereunder, then Parent and the Shareholder Equityholders Representative shall attempt in good faith to resolve any such objections raised by the Shareholder Representative in such Claim Dispute Notice. If Parent and the Shareholder Equityholders Representative agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent and the Shareholder Equityholders Representative shall be prepared and signed by both parties and, if cash remains in the General Escrow Fund, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash from the General Escrow Fund in accordance with the terms of such memorandumparties.
(ed) If no such resolution can be reached during the forty45-five (45)-day day period following Parent’s receipt of a given Claim Dispute NoticeNotice hereunder, then upon the expiration of such forty45-five (45)-day day period, either Parent or the Shareholder Equityholders Representative may bring suit to resolve the objection in accordance with Sections 11.09, 11.10 Section 10.11 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdictionSection 10.12.
Appears in 1 contract
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, an Indemnitee (as applicable, Parent defined below) determines in good faith that any Indemnitee it has a bona fide claim for indemnification pursuant to this Article 10IX and the Indemnitee intends to make such indemnification claim, Parent then Purchaser (in the case of any indemnification claim pursuant to Section 9.2(a)) or Seller (in the case of any indemnification claim pursuant to Section 9.2(b)), as the case may be, shall promptly thereafter deliver to Seller or Purchaser, as the Shareholder Representative case may be, a certificate signed by any officer of Parent written notice (any certificate notice delivered in accordance with the provisions of this Section 10.04(a) an 9.4(a), a “Officer’s Claim Certificate”):
(i) stating that an the Indemnitee has a claim for indemnification pursuant to this Article 10;
(ii) IX and, to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or sufferDamages; and
(iii) and specifying in reasonable detail (based upon the information then possessed by Parent) the material facts known to the Indemnitee giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and Indemnitor (as defined below) is materially prejudiced thereby.
(b) At If Seller or Purchaser, as the time of delivery of any Officer’s Claim Certificate to the Shareholder Representativecase may be, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Indemnitee).
(c) If the Shareholder Representative in good faith objects to any claim made by Parent in any Officer’s Claim Certificate, then Seller or Purchaser, as the Shareholder Representative case may be, shall deliver a written notice (a “Claim Dispute Notice”) to Parent Purchaser or Seller, as the case may be, during the thirty (30)-day 30-day period commencing upon receipt by Seller or Purchaser, as the Shareholder Representative case may be, of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent in the Officer’s applicable Claim Certificate. If Seller or Purchaser, as the Shareholder Representative case may be, does not deliver a Claim Dispute Notice to Parent hereunder prior to the expiration of such thirty (30)-day 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor of the applicable Indemnitee for purposes of this Article 10 IX on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Escrow Fund, then Parent may direct the Escrow Agent to deliver cash from the General Escrow Fund to Parent in accordance with this Section 10.04Certificate.
(dc) If the Shareholder Representative delivers a Claim Dispute NoticeNotice is properly delivered hereunder, then Parent Purchaser and the Shareholder Representative Seller shall attempt in good faith to resolve any such objections raised by the Shareholder Representative in such Claim Dispute Notice. If Parent Purchaser and the Shareholder Representative Seller agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent Purchaser and the Shareholder Representative Seller shall be prepared and signed by both parties and, if cash remains in the General Escrow Fund, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash from the General Escrow Fund in accordance with the terms of such memorandumparties.
(ed) If no such resolution can be reached during the forty45-five (45)-day day period following Parent’s receipt of a given Claim Dispute NoticeNotice hereunder, then upon the expiration of such forty45-five (45)-day day period, either Parent Purchaser or the Shareholder Representative Seller may bring suit to resolve the objection in accordance with Sections 11.09, 11.10 Section 10.10 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdictionSection 10.11.
Appears in 1 contract
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, as applicable, Parent Purchaser determines in good faith that any Indemnitee has a bona fide claim for indemnification pursuant to this Article 10, Parent Purchaser may deliver to the Shareholder Representative Seller a certificate signed by any officer of Parent Purchaser (any certificate delivered in accordance with the provisions of this Section 10.04(a) an “Officer’s Claim Certificate”):
(i) stating that an Indemnitee has a claim for indemnification pursuant to this Article 10;
(ii) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by ParentPurchaser) the material facts known to the Indemnitee giving rise to such claim. .
(iv) No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and Seller is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder RepresentativeSeller, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent Purchaser (on behalf of itself or any other Indemnitee)) if any funds remain in the Indemnity Escrow Fund.
(c) If the Shareholder Representative Seller in good faith objects to any claim made by Parent Purchaser in any Officer’s Claim Certificate, then the Shareholder Representative Seller shall deliver a written notice (a “Claim Dispute Notice”) to Parent Purchaser during the thirty (30)-day 30-day period commencing upon receipt by the Shareholder Representative Seller of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent Purchaser in the Officer’s Claim Certificate. If the Shareholder Representative Seller does not deliver a Claim Dispute Notice to Parent Purchaser prior to the expiration of such thirty (30)-day 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in ParentPurchaser’s favor for purposes of this Article 10 on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Indemnity Escrow Fund, then Parent Purchaser may direct the Escrow Agent to deliver cash from the General Indemnity Escrow Fund to Parent Purchaser in accordance with this Section 10.04.
(d) If the Shareholder Representative Seller delivers a Claim Dispute Notice, then Parent Purchaser and the Shareholder Representative Seller shall attempt in good faith to resolve any such objections raised by the Shareholder Representative Seller in such Claim Dispute Notice. If Parent Purchaser and the Shareholder Representative Seller agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent Purchaser and the Shareholder Representative Seller shall be prepared and signed by both parties and, if cash remains in the General Indemnity Escrow Fund, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash from the General Indemnity Escrow Fund in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the forty45-five (45)-day day period following ParentPurchaser’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty45-five (45)-day day period, either Parent Purchaser or the Shareholder Representative Seller may bring suit to resolve the objection in accordance with Sections 11.07, 11.08 and 11.09, 11.10 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative Purchaser and the Company ShareholdersSeller, and Parent Purchaser and the Shareholder Representative Seller shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Indemnity Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdiction.
Appears in 1 contract
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, as applicable, Parent an Indemnitee determines in good faith that any Indemnitee it has a bona fide claim for indemnification pursuant to this Article 10IX, then Parent may shall promptly thereafter deliver to the Shareholder Equityholders Representative a certificate signed by any officer of Parent (any certificate delivered in accordance with the provisions of this Section 10.04(a) an 9.4(a), a “Officer’s Claim Certificate”):
(i) stating that an the Indemnitee has a claim for indemnification pursuant to this Article 10IX;
(ii) to the extent possible, containing contain a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or suffersuffer (which amount may be amended over time); and
(iii) specifying in reasonable detail (based upon the information then possessed by Parent) the material facts known to the Indemnitee giving rise to such claimclaim and the legal bases therefor (including a reasonably detailed summary of the relevant representations, warranties, covenants and/or specific indemnities under this Agreement). No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors Equityholders are actually and materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder Representative, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Indemnitee).
(c) If the Shareholder Equityholders Representative in good faith objects to any claim made by Parent in any Officer’s Claim Certificate, then the Shareholder Equityholders Representative shall deliver a written notice (a “Claim Dispute Notice”) to Parent during the thirty (30)-day 30-day period commencing upon receipt by the Shareholder Representative delivery of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent in the Officer’s applicable Claim Certificate. If the Shareholder Equityholders Representative does not deliver a Claim Dispute Notice to Parent hereunder prior to the expiration of such thirty (30)-day 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor of the applicable Indemnitee for purposes of this Article 10 IX on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Escrow Fund, then Parent may direct the Escrow Agent to deliver cash from the General Escrow Fund to Parent in accordance with this Section 10.04Certificate.
(dc) If the Shareholder Representative delivers a Claim Dispute NoticeNotice is properly delivered hereunder, then Parent and the Shareholder Equityholders Representative shall attempt in good faith to resolve any such objections raised by the Shareholder Representative in such Claim Dispute Notice. If Parent and the Shareholder Equityholders Representative agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent and the Shareholder Equityholders Representative shall be prepared and signed by both parties and, if cash remains in the General Escrow Fund, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash from the General Escrow Fund in accordance with the terms of such memorandumparties.
(ed) If no such resolution can be reached during the forty45-five (45)-day day period following Parent’s receipt delivery of a given Claim Dispute NoticeNotice hereunder, then upon the expiration of such forty45-five (45)-day day period, either Parent or the Shareholder Equityholders Representative may bring suit to resolve the objection in accordance with Sections 11.09, 11.10 Section 10.12 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdictionSection 10.13.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Vir Biotechnology, Inc.)
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, as applicable, Parent Buyer determines in good faith that any Indemnitee Buyer Indemnified Party has a bona fide claim for indemnification pursuant to this Article 10X, Parent Buyer may deliver to the Shareholder Securityholder Representative a certificate signed by any officer of Parent Buyer (any certificate delivered in accordance with the provisions of this Section 10.04(a) an “Officer’s Claim Certificate”):
(i) stating that an Indemnitee a Buyer Indemnified Party has a claim for indemnification pursuant to this Article 10X;
(ii) to the extent possiblereasonably practicable, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee Buyer Indemnified Party claims to be entitled to receive, which shall be the amount of Damages such Indemnitee Buyer Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer, and the method of computation of the amount of such claim; and
(iii) specifying in reasonable detail (based upon the information then possessed by ParentBuyer following reasonable inquiry) the material facts known to the Indemnitee Buyer Indemnified Party giving rise to such claim. Buyer shall also provide such other information then possessed by Buyer with respect to such claim for indemnification as the Securityholder Representative may reasonably request. No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemniteea Buyer Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnitors Securityholders are actually and materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder Securityholder Representative, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent Buyer (on behalf of itself or any other IndemniteeBuyer Indemnified Party).
(c) If the Shareholder Securityholder Representative in good faith objects to any claim made by Parent Buyer in any Officer’s Claim Certificate, then the Shareholder Securityholder Representative shall deliver a written notice (a “Claim Dispute Notice”) to Parent Buyer during the thirty (30)-day period commencing upon receipt by the Shareholder Securityholder Representative of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent Buyer in the Officer’s Claim Certificate. If the Shareholder Securityholder Representative does not deliver a Claim Dispute Notice to Parent Buyer prior to the expiration of such thirty (30)-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in ParentBuyer’s favor for purposes of this Article 10 X on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Indemnity Escrow Fund, then Parent may Buyer shall direct the Escrow Agent to deliver cash from the General Indemnity Escrow Fund to Parent Buyer in accordance with this Section 10.04.
(d) If the Shareholder Securityholder Representative delivers a Claim Dispute Notice, then Parent Buyer and the Shareholder Securityholder Representative shall attempt in good faith to resolve any such objections raised by the Shareholder Securityholder Representative in such Claim Dispute Notice. If Parent Buyer and the Shareholder Securityholder Representative agree to a resolution of such objectionobjection (subject, inter alia, to Section 11.01(b)(ii)), then a memorandum setting forth the matters conclusively determined by Parent Buyer and the Shareholder Securityholder Representative shall be prepared and signed by both parties and, if cash remains in the General Indemnity Escrow Fund, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash from the General Indemnity Escrow Fund in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the forty-five (45)-day period following ParentBuyer’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty-five (45)-day period, either Parent Buyer or the Shareholder Securityholder Representative may bring suit to resolve the objection in accordance with Sections 11.09Section 11.07; provided, 11.10 and 11.11however, that, to the extent any amount remains in the Indemnity Escrow Fund or any portion of the Sales Milestone Consideration has been withheld pursuant to Section 3.06(b)(i), unless Buyer initiates an Action with respect to the claim in such Officer’s Claim Certificate (whether a third party Claim or otherwise) within one hundred twenty (120) days following Buyer’s receipt of such Claim Dispute Notice, such claim shall be deemed to have been conclusively determined in the Securityholder Representative’s favor for purposes of this Article X on the terms set forth in the Claim Dispute Notice. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the ParentBuyer, the Shareholder Securityholder Representative and the Company ShareholdersSecurityholders, and Parent Buyer and the Shareholder Securityholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Indemnity Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdiction.
(f) Notwithstanding anything to the contrary in this Section 10.04, in the event that a Buyer Indemnified Party brings a claim for indemnification under Section 10.02(b) and such claim relates to the breach of a representation or warranty or covenants by one Securityholder (a “Solo Securityholder Claim”), then, solely for purposes of this Article X, (i) only the Securityholder that is subject to such Solo Securityholder Claim (the “Solo Securityholder”) shall be required to provide indemnification pursuant this Article X, and (ii) the Solo Securityholder shall serve the role of Securityholder Representative for purposes of the Solo Securityholder Claim under this Article X, mutatis mutandis (all of the foregoing, without derogating from any other provision of this Article X which shall apply mutatis mutandis), provided that the Securityholder Representative shall be provided with a copy of any notices, certificates, memoranda or other documents or instruments delivered or exchanged between Buyer and the Solo Securityholder under or in connection with this Article X. For the avoidance of doubt and notwithstanding anything else herein to the contrary, no Securityholder shall be liable for any breach of this Agreement by any other Securityholder.
Appears in 1 contract
Sources: Option and Equity Purchase Agreement (Bioventus Inc.)
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, as applicable, Parent determines in good faith that any Indemnitee Parent Indemnified Party has a bona fide claim for indemnification pursuant to this Article 10IX, Parent may deliver to the Shareholder Equityholders’ Representative a certificate signed by any officer of Parent (any certificate delivered in accordance with the provisions of this Section 10.04(a) 9.4(a), an “Officer’s Claim Certificate”):
(i) stating that an Indemnitee a Parent Indemnified Party has a claim for indemnification pursuant to this Article 10IX;
(ii) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee Parent Indemnified Party claims to be entitled to receive, which shall be the amount of Damages such Indemnitee Parent Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by Parent) the material facts known to the Indemnitee Parent Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemniteea Parent Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnitors Equityholders are actually and materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder Equityholders’ Representative, if the Indemnity Escrow Account has not been released in accordance with the terms of the Escrow Agreement, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other IndemniteeParent Indemnified Party).
(c) If the Shareholder Equityholders’ Representative in good faith objects to any claim made by Parent in any Officer’s Claim Certificate, then the Shareholder Equityholders’ Representative shall deliver a written notice (a “Claim Dispute Notice”) to Parent during the thirty (30)-day 30) day period commencing upon receipt by the Shareholder Equityholders’ Representative of the Officer’s Claim CertificateCertificate (such period, the “Claim Response Period”). The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent in the Officer’s Claim Certificate. If the Shareholder Equityholders’ Representative does not deliver a Claim Dispute Notice to Parent prior to the expiration of such thirty (30)-day 30) day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor for purposes of this Article 10 IX on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Indemnity Escrow Fund, then Parent may direct the Escrow Agent to deliver cash from the General Escrow Fund to Parent in accordance with this Section 10.049.4 and the Escrow Agreement.
(d) If the Shareholder Equityholders’ Representative delivers a Claim Dispute NoticeNotice within the Claim Response Period, then Parent and the Shareholder Equityholders’ Representative shall attempt in good faith to resolve any such objections raised by the Shareholder Equityholders’ Representative in such Claim Dispute Notice. If Parent and the Shareholder Equityholders’ Representative agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent and the Shareholder Equityholders’ Representative shall be prepared and signed by both parties and, if cash remains in the General Indemnity Escrow Fund, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash from the General Indemnity Escrow Fund in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the forty-five (45)-day 45) day period following Parent’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty-five (45)-day 45) day period, either Parent or the Shareholder Equityholders’ Representative may bring suit to resolve the objection in accordance with Sections 11.0910.12 and 10.13. Upon any such resolution, 11.10 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Equityholders’ Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Indemnity Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdiction.
Appears in 1 contract
Sources: Merger Agreement (Shire PLC)
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, as applicable, Parent determines in good faith that any Indemnitee has a bona fide claim for indemnification pursuant to this Article 10, Parent may deliver to the Shareholder Securityholder Representative a certificate signed by any officer of Parent (any certificate delivered in accordance with the provisions of this Section 10.04(a) ), an “Officer’s Claim Certificate”):
(i) stating that an Indemnitee has a claim for indemnification pursuant to this Article 10;
(ii) to the extent possiblereasonably practicable, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by ParentParent following reasonable inquiry) the material facts known to the Indemnitee giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder Representative, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Indemnitee).
(c) If the Shareholder Securityholder Representative in good faith objects to any claim made by Parent in any Officer’s Claim Certificate, then the Shareholder Securityholder Representative shall deliver a written notice (a “Claim Dispute Notice”) to Parent during the thirty (30)-day period commencing upon receipt by the Shareholder Securityholder Representative of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent in the Officer’s Claim Certificate. If the Shareholder Securityholder Representative does not deliver a Claim Dispute Notice to Parent prior to the expiration of such thirty (30)-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor for purposes of this Article 10 on the terms set forth in the Officer’s Claim Certificate and Certificate, (ii) if cash remains in to the General Escrow Fundextent of any Holdback Remaining Amount, then Parent may direct the Escrow Agent to deliver cash permanently withhold from the General Escrow Fund Indemnitors, and the Indemnitors shall not be entitled to receive, an amount of the Holdback Remaining Amount sufficient to satisfy any Damages to which an Indemnitee entitled pursuant to Article 10 and (iii) in the event the Holdback Remaining Amount is insufficient to satisfy such Damages, then Parent may recover any unsatisfied Damages directly against the Indemnitors in accordance with the terms of and subject to the limitations set forth in this Section 10.04Agreement.
(dc) If the Shareholder Securityholder Representative delivers a Claim Dispute Notice, then Parent and the Shareholder Securityholder Representative shall attempt in good faith to resolve any such objections raised by the Shareholder Securityholder Representative in such Claim Dispute Notice. If Parent and the Shareholder Securityholder Representative agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent and the Shareholder Securityholder Representative shall be prepared and signed by both parties andParties. To the extent of any Holdback Remaining Amount, if cash remains Parent may permanently withhold from the Indemnitors, and the Indemnitors shall not be entitled to receive, an amount of the Holdback Remaining Amount in accordance with the General Escrow Fundterms of such memorandum. In the event the Holdback Remaining Amount is insufficient to satisfy such Damages, promptly delivered then Parent may recover any unsatisfied Damages directly against the Indemnitors in accordance with the terms of and subject to the Escrow Agent directing the Escrow Agent to distribute cash from the General Escrow Fund limitations set forth in this Agreement and in accordance with the terms of such memorandum.
(ed) If no such resolution can be reached during the forty-five (45)-day period following Parent’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty-five (45)-day period, either Parent or the Shareholder Securityholder Representative may bring suit to resolve the objection in accordance with Sections 11.07, 11.08 and 11.09, 11.10 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdiction.
Appears in 1 contract
Sources: Merger Agreement (Okta, Inc.)
Claims and Procedures. (a) If at any time prior Prior to the FR Expiration Dateexpiration of the relevant Claim Period, the IPR Expiration Date or the General Expiration Date, as applicable, Parent determines in good faith that any Indemnitee has a bona fide claim for indemnification pursuant to this Article 10, Parent Acquiror may deliver to the Shareholder Representative Escrow Agent a certificate signed by any officer of Parent Acquiror (any certificate delivered in accordance with the provisions of this Section 10.04(a) an a “Officer’s Claim Certificate”):
(i) stating that an Indemnitee Acquiror Indemnified Person has a claim for indemnification pursuant to this Article 10Indemnifiable Damages;
(ii) to the extent possible, containing a good faith non-binding, preliminary estimate of stating the amount to which of such Indemnitee claims to be entitled to receiveIndemnifiable Damages (which, which shall in the case of Indemnifiable Damages not yet incurred, paid, reserved or accrued, may be the amount of Damages such Indemnitee claims reasonably anticipated by Acquiror to have so incurred be incurred, paid reserved or suffered or could reasonably be expected to incur or sufferaccrued); and
(iii) specifying in reasonable detail (based upon the information then possessed by ParentAcquiror) the material facts known individual items of such Indemnifiable Damages included in the amount so stated and the nature of the claim to the Indemnitee giving rise to which such claimIndemnifiable Damages are related. No delay in providing such Officer’s Claim Certificate prior to within the Expiration Date Claims Period shall affect an IndemniteeIndemnified Person’s rights hereunderhereunder or under the Escrow Agreement, unless (and then only to the extent that) the Indemnitors Stockholders’ Agent or the Stockholders are actually and materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder RepresentativeEscrow Agent, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Stockholders’ Agent by or on behalf of Parent Acquiror (on behalf of itself or any other Indemnitee).
Acquiror Indemnified Person) in accordance with Section 12.2 and for a period of thirty (c30) If calendar days after such delivery to the Shareholder Representative Stockholders’ Agent of such Claim Certificate, the Escrow Agent shall make no payment pursuant to this Section 11.5 unless the Escrow Agent shall have received written authorization from the Stockholders’ Agent to make such delivery. After the expiration of such thirty (30)-calendar day period, the Escrow Agent shall make delivery of cash from the Escrow Fund to the relevant Acquiror Indemnified Party in good faith objects accordance with this Section 11.5; provided, however, that no such delivery may be made if and to the extent the Stockholders’ Agent has objected in a written statement to any claim or claims made by Parent in any Officer’s the Claim Certificate, then and such written statement shall have been delivered to the Shareholder Representative shall deliver a written notice (a “Claim Dispute Notice”) Escrow Agent and to Parent during the thirty (30)-day period commencing upon receipt by the Shareholder Representative of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent in the Officer’s Claim Certificate. If the Shareholder Representative does not deliver a Claim Dispute Notice to Parent Acquiror prior to the expiration of such thirty (30)-day 30)-calendar day period. In the event that there are no longer any amounts in the Escrow Fund, then (i) each and such claim for indemnification set forth in relates to a breach of the Fundamental Representations, fraud, or Section 11.2(a)(iv), such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor for purposes of this Article 10 on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Escrow Fund, then Parent may direct the Escrow Agent to deliver cash from the General Escrow Fund to Parent in accordance with this Section 10.04.
(d) If the Shareholder Representative delivers a Claim Dispute Notice, then Parent and the Shareholder Representative shall attempt in good faith to resolve any such objections raised by the Shareholder Representative in such Claim Dispute Notice. If Parent and the Shareholder Representative agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent and the Shareholder Representative shall be prepared and signed by both parties and, if cash remains in the General Escrow Fund, promptly delivered solely to the Escrow Agent directing the Escrow Agent to distribute cash from the General Escrow Fund in accordance with the terms of such memorandumStockholders’ Agent.
(e) If no such resolution can be reached during the forty-five (45)-day period following Parent’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty-five (45)-day period, either Parent or the Shareholder Representative may bring suit to resolve the objection in accordance with Sections 11.09, 11.10 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdiction.
Appears in 1 contract
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, as applicable, Parent determines in good faith that any Indemnitee has a bona fide claim for indemnification pursuant to this Article 10, Parent may deliver to the Shareholder Securityholder Representative a certificate signed by any officer of Parent (any certificate delivered in accordance with the provisions of this Section 10.04(a) ), an “Officer’s Claim Certificate”):
(i) stating that an Indemnitee has a claim for indemnification pursuant to this Article 10;
(ii) to the extent possiblereasonably practicable, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by ParentParent following reasonable inquiry) the material facts known to the Indemnitee giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder Securityholder Representative, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Indemnitee).
(c) If the Shareholder Securityholder Representative in good faith objects to any claim made by Parent in any Officer’s Claim Certificate, then the Shareholder Securityholder Representative shall deliver a written notice (a “Claim Dispute Notice”) to Parent during the thirty (30)-day period commencing upon receipt by the Shareholder Securityholder Representative of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent in the Officer’s Claim Certificate. If the Shareholder Securityholder Representative does not deliver a Claim Dispute Notice to Parent prior to the expiration of such thirty (30)-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor for purposes of this Article 10 on the terms set forth in the Officer’s Claim Certificate and (ii) if cash any Escrowed Cash or Escrowed Shares remains in the General Indemnity Escrow Fund, then Parent may direct the Escrow Agent to deliver cash such Escrowed Cash and/or Escrowed Shares from the General Indemnity Escrow Fund to Parent in accordance with this Section 10.04.
(d) If the Shareholder Securityholder Representative delivers a Claim Dispute Notice, then Parent and the Shareholder Securityholder Representative shall attempt in good faith to resolve any such objections raised by the Shareholder Securityholder Representative in such Claim Dispute Notice. If Parent and the Shareholder Securityholder Representative agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent and the Shareholder Securityholder Representative shall be prepared and signed by both parties Parties and, if cash any Escrowed Cash or Escrowed Shares remains in the General Indemnity Escrow Fund, if applicable, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash such Escrowed Cash and/or Escrowed Shares from the General Indemnity Escrow Fund in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the forty-five (45)-day period following Parent’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty-five (45)-day period, either Parent or the Shareholder Securityholder Representative may bring suit to resolve the objection in accordance with Sections 11.07, 11.08 and 11.09, 11.10 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Securityholder Representative and the Company ShareholdersStockholders, and Parent and the Shareholder Securityholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash Escrowed Cash and/or Escrowed Shares from the General Indemnity Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdiction.
(f) The amount of any Damages that Indemnitees may be entitled to recover under Section 10.02(i) shall be subject to set-off as and to the extent described in Section 7.06.
Appears in 1 contract
Sources: Merger Agreement (Intuit Inc)
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, as applicable, Parent determines in good faith that any Indemnitee has a bona fide claim for indemnification pursuant to this Article 10IX, Parent may deliver to the Shareholder Equityholder Representative a certificate signed by any officer of Parent (any certificate delivered in accordance with the provisions of this Section 10.04(a9.4(a) an “Officer’s Claim Certificate”):
(i) stating that an Indemnitee has a claim for indemnification pursuant to this Article 10IX;
(ii) to the extent possiblereasonably feasible at the time, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could would reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by Parent) Parent or the material facts then known to the Indemnitee giving rise to such claim) the basis for such claim. No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only except to the extent that) the Indemnitors Equityholders are actually and materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder Equityholder Representative, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Indemnitee).
(c) If the Shareholder Equityholder Representative in good faith objects to any claim made by Parent in any Officer’s Claim Certificate, then the Shareholder Equityholder Representative shall deliver a written notice (a “Claim Dispute Notice”) to Parent during the thirty (30)-day 30-day period commencing upon receipt by the Shareholder Equityholder Representative of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent in the Officer’s Claim Certificate. If the Shareholder Equityholder Representative does not deliver a Claim Dispute Notice to Parent prior to the expiration of such thirty (30)-day period30-day period or if the applicable Claim Dispute Notice does not dispute one or more portions of the Officer’s Claim Certificate, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate that is not disputed in the applicable Claim Dispute Notice shall be deemed to have been conclusively determined in Parent’s favor for purposes of this Article 10 IX on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Indemnity Escrow Fund, then Parent may direct (and if necessary, Equityholder Representative shall also direct) the Escrow Agent to deliver cash from the General Indemnity Escrow Fund to Parent in accordance with this Section 10.049.4 for each claim or the undisputed portion thereof; provided that no such partial release by the Escrow Agent shall terminate or otherwise prejudice Indemnitee’s rights with respect to amounts claimed which are in excess of the amounts so released.
(d) If the Shareholder Equityholder Representative delivers a Claim Dispute Notice, then Parent and the Shareholder Equityholder Representative shall attempt in good faith to resolve any such objections raised by the Shareholder Equityholder Representative in such Claim Dispute Notice. If Parent and the Shareholder Equityholder Representative agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent and the Shareholder Equityholder Representative shall be prepared and signed by both parties and, if cash remains in the General Indemnity Escrow Fund, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash from the General Indemnity Escrow Fund in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the forty30-five (45)-day day period following Parent’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty30-five (45)-day day period, either Parent or the Shareholder Equityholder Representative may bring suit to resolve the objection in accordance with Sections 11.0910.13 and 10.14. Upon the rendering of a final, 11.10 and 11.11. The decision non-appealable judgment by a court of competent jurisdiction over the trial court parties as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealableCertificate, binding and conclusive upon the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Equityholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Indemnity Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial such court may be entered in any court having jurisdictionjurisdiction and will be binding and conclusive upon Parent, the Equityholder Representative and the Equityholders.
(f) Notwithstanding anything to the contrary in this Agreement, if Parent delivers an Officer’s Claim Certificate in respect of a claim against an individual stockholder pursuant to Section 9.2(a)(iii), then the amount of such claim that is equal to or less than such stockholder’s Applicable Percentage (as such amount may be reduced pursuant to Section 9.3(d)) shall remain in the Indemnity Escrow Fund at and after the Expiration Date until the disposition of such amount is finally determined in accordance with the terms of the Escrow Agreement. The Equityholder Representative shall not act for or on behalf of any stockholder in connection with any claim against a stockholder pursuant to Section 9.2(a)(iii) hereunder.
Appears in 1 contract
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, an Indemnitee (as applicable, Parent defined below) determines in good faith that any Indemnitee it has a bona fide claim for indemnification pursuant to this Article 10IX and the Indemnitee intends to make such indemnification claim, then Parent (in the case of any indemnification claim pursuant to Section 9.2(a)) or the Equityholders Representative (on behalf of the Equityholders) (in the case of any indemnification claim pursuant to Section 9.2(b)), as the case may be, shall promptly thereafter deliver to the Shareholder Equityholders Representative or Parent, as the case may be, a certificate signed by any officer of Parent (any certificate delivered in accordance with the provisions of this Section 10.04(a) an 9.4(a), a “Officer’s Claim Certificate”):
(i) stating that an the Indemnitee has a claim for indemnification pursuant to this Article 10IX;
(ii) to the extent possible, containing contain a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by Parent) the material facts known to the Indemnitee giving rise to such claimclaim and the legal bases therefor (including a reasonably detailed summary of the relevant representations, warranties, covenants and/or other item of indemnification under this Agreement). No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and Indemnitor (as defined below) is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder Equityholders Representative, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Parent Indemnitee).
(c) If the Shareholder Equityholders Representative in good faith or Parent, as the case may be, objects to any claim made by Parent in any Officer’s Claim Certificate, then the Shareholder Equityholders Representative or Parent, as the case may be, shall deliver a written notice (a “Claim Dispute Notice”) to Parent or the Equityholders Representative, as the case may be, during the thirty (30)-day 30-day period commencing upon receipt by the Shareholder Equityholders Representative or Parent, as the case may be, of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent in the applicable Officer’s Claim Certificate. If the Shareholder Equityholders Representative or Parent, as the case may be, does not deliver a Claim Dispute Notice to Parent hereunder prior to the expiration of such thirty (30)-day 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor of the applicable Indemnitee for purposes of this Article 10 IX on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Escrow Fund, then Parent may direct the Escrow Agent to deliver cash from the General Escrow Fund to Parent in accordance with this Section 10.04Certificate.
(d) If the Shareholder Representative delivers a Claim Dispute NoticeNotice is properly delivered hereunder, then Parent and the Shareholder Equityholders Representative shall attempt in good faith to resolve any such objections raised by the Shareholder Representative in such Claim Dispute Notice. If Parent and the Shareholder Equityholders Representative agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent and the Shareholder Equityholders Representative shall be prepared and signed by both parties and, if cash remains in the General Escrow Fund, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash from the General Escrow Fund in accordance with the terms of such memorandumparties.
(e) If no such resolution can be reached during the forty45-five (45)-day day period following Parent’s receipt of a given Claim Dispute NoticeNotice hereunder, then upon the expiration of such forty45-five (45)-day day period, either Parent or the Shareholder Equityholders Representative may bring suit to resolve the objection in accordance with Sections 11.09, 11.10 Section 10.11 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdictionSection 10.12.
Appears in 1 contract
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, as applicable, Parent Purchaser determines in good faith that any Indemnitee has a bona fide claim for indemnification pursuant to this Article 10, Parent Purchaser may deliver to the Shareholder Representative Sellers a certificate signed by any officer of Parent Purchaser (any certificate delivered in accordance with the provisions of this Section 10.04(a) an “Officer’s Claim Certificate”):
(i) stating that an Indemnitee has a claim for indemnification pursuant to this Article 10;
(ii) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by ParentPurchaser) the material facts known to the Indemnitee giving rise to such claim. .
(iv) No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors Sellers are actually and materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Shareholder Representative, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Indemnitee).
(c) If the Shareholder Representative Sellers in good faith objects object to any claim made by Parent Purchaser in any Officer’s Claim Certificate, then the Shareholder Representative Sellers shall deliver a written notice (a “Claim Dispute Notice”) to Parent Purchaser during the thirty (30)-day 30-day period commencing upon receipt by the Shareholder Representative Sellers of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent Purchaser in the Officer’s Claim Certificate. If the Shareholder Representative does Sellers do not deliver a Claim Dispute Notice to Parent Purchaser prior to the expiration of such thirty (30)-day 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in ParentPurchaser’s favor for purposes of this Article 10 on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Escrow Fund, then Parent may direct the Escrow Agent to deliver cash from the General Escrow Fund to Parent in accordance with this Section 10.04.
(d) Certificate. If the Shareholder Representative delivers Sellers deliver a Claim Dispute Notice, then Parent Purchaser and the Shareholder Representative Sellers shall attempt in good faith to resolve any such objections raised by the Shareholder Representative Sellers in such Claim Dispute Notice. If Parent Purchaser and the Shareholder Representative Sellers agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent Purchaser and the Shareholder Representative Sellers shall be prepared and signed by both parties and, if cash remains in the General Escrow Fund, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash from the General Escrow Fund in accordance with the terms of such memorandumparties.
(ec) If no such resolution can be reached during the forty45-five (45)-day day period following ParentPurchaser’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty45-five (45)-day day period, either Parent Purchaser or the Shareholder Representative Sellers may bring suit to resolve the objection in accordance with Sections 11.07, 11.08 and 11.09, 11.10 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealablenon-appealable, binding and conclusive upon the Parent, the Shareholder Representative Purchaser and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewithSellers. Judgment upon any award rendered by the trial court may be entered in any court having jurisdiction.
Appears in 1 contract
Sources: Share Purchase Agreement (Esports Entertainment Group, Inc.)
Claims and Procedures. (a) If at In order for any time prior Person to the FR Expiration Date, the IPR Expiration Date or the General Expiration Date, as applicable, Parent determines in good faith that any Indemnitee has a bona fide claim for be entitled to seek indemnification pursuant to under this Article 1011 (an “Indemnitee”), Parent may such Indemnitee shall deliver to the Shareholder Representative a written certificate signed by any officer or director of Parent the Indemnitee (or if the Indemnitee is an individual Person, signed by the Indemnitee) (any certificate delivered in accordance with the provisions of this Section 10.04(a) an 11.04(a), a “Officer’s Claim Certificate”):) to the party from whom such indemnification is sought (the “Indemnitor”), as promptly as reasonably practicable after it acquires knowledge of the fact, event or circumstance giving rise to the claim for Damages (and in any event, no later than twenty (20) Business Days after written notice of such claim is delivered to the Indemnitee if such claim is a Third Party Claim (as defined below)), specifying in reasonable detail (to the extent known) the nature of, the facts and legal basis for, the amount (if known) of, such claim asserted, and the provisions of this Agreement upon which such claim for indemnification is made. Failure to deliver a Claim Certificate in compliance with this Section 11.04 in a timely manner as specified in the immediately preceding sentence shall not be deemed a waiver of the Indemnitee’s right to indemnification hereunder for Damages in connection with such claim except to the extent the Indemnitor shall have been prejudiced as a result of such failure. The Claim Certificate shall:
(i) stating state that an the applicable Indemnitee has a claim for indemnification pursuant to this Article 1011 and expressly identify the provisions of this Agreement upon which such claim for indemnification is made in reasonable detail (including the specific representations, warranties and/or covenants that are alleged to be inaccurate or alleged to have been breached);
(ii) to the extent possible, containing contain a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying specify in reasonable detail (based upon the information then possessed by ParentIndemnitee) the material facts known to the Indemnitee giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and materially prejudiced thereby.
(b) At the time of As promptly as practicable after delivery of any Officer’s a Claim Certificate to an Indemnitor, the Shareholder Representative, a duplicate copy of Indemnitee which has provided such Officer’s Claim Certificate shall be delivered supply and make available to the Escrow Agent by Indemnitor all relevant information in its or on behalf of Parent (on behalf of itself or any other Indemnitee).
(c) If the Shareholder Representative in good faith objects to any claim made by Parent in any Officer’s Claim Certificate, then the Shareholder Representative shall deliver a written notice (a “Claim Dispute Notice”) to Parent during the thirty (30)-day period commencing upon receipt by the Shareholder Representative of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent in the Officer’s Claim Certificate. If the Shareholder Representative does not deliver a Claim Dispute Notice to Parent prior its Affiliates’ possession relating to the expiration of such thirty (30)-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Parent’s favor for purposes of this Article 10 on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the General Escrow Fund, then Parent may direct the Escrow Agent to deliver cash from the General Escrow Fund to Parent in accordance with this Section 10.04.
(d) If the Shareholder Representative delivers a Claim Dispute Notice, then Parent and the Shareholder Representative shall attempt in good faith to resolve any such objections raised by the Shareholder Representative identified in such Claim Dispute Notice. If Parent and Certificate (except to the Shareholder Representative agree extent that such action would result in a loss of attorney-client privilege or protections of the work product doctrine; provided, that such Indemnitee shall use commercially reasonable efforts to provide such information in such format to the Indemnitor, or on an outside counsel only basis, in a resolution manner which would not result in the loss of such objectionattorney-client privilege or work product doctrine) and shall cooperate with the Indemnitor. Without limiting the foregoing, then a memorandum setting forth such cooperation shall include the matters conclusively determined by Parent retention and (upon the Shareholder Representative shall be prepared and signed by both parties and, if cash remains in Indemnitor’s request) the General Escrow Fund, promptly delivered provision to the Escrow Agent directing the Escrow Agent Indemnitor of records and information which are reasonably relevant to distribute cash from the General Escrow Fund in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the forty-five (45)-day period following Parent’s receipt of claim, and making employees and other representatives and advisors available on a given Claim Dispute Notice, then upon the expiration of such forty-five (45)-day period, either Parent or the Shareholder Representative may bring suit mutually convenient basis to resolve the objection in accordance with Sections 11.09, 11.10 provide additional information and 11.11. The decision of the trial court as to the validity and amount explanation of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdictionmaterial provided hereunder.
Appears in 1 contract
Sources: Merger Agreement (Universal Truckload Services, Inc.)
Claims and Procedures. (a) If at any time prior to the FR Expiration Date, the IPR applicable Expiration Date or the General Expiration Date, as applicable, Parent determines in good faith that any Indemnitee has a bona fide claim for indemnification pursuant to this Article 101, Parent may deliver to the Shareholder Stockholder Representative a certificate signed by any officer of Parent notice (any certificate delivered in accordance with the provisions of this Section 10.04(a) an a “Officer’s Claim CertificateNotice”):
(i) stating that an Indemnitee has a claim for indemnification pursuant to this Article 1011;
(ii) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Damages such Indemnitee claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by Parent) the material facts known to the Indemnitee giving rise to such claim. .
(b) No delay in providing such Officer’s Claim Certificate Notice prior to the applicable Expiration Date shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitors are actually and materially prejudiced thereby; provided, however, that no Indemnitor shall be liable for any Damages under Section 10.02(a) unless such Claim is timely asserted during the applicable survival period specified in Section 10.01.
(bc) At the time of delivery of any Officer’s Claim Certificate Notice to the Shareholder Stockholder Representative, a duplicate copy of such Officer’s Claim Certificate Notice shall be delivered to the Escrow Agent by or on behalf of Parent (on behalf of itself or any other Indemnitee) ); provided, that failure to deliver a duplicate copy shall not affect an Indemnitee’s rights hereunder.
(cd) If the Shareholder Stockholder Representative in good faith objects to any claim made by Parent in any Officer’s Claim CertificateNotice, then the Shareholder Stockholder Representative shall deliver a written notice (a “Claim Dispute Notice”) to Parent during the thirty (30)-day 30-day period commencing upon receipt by the Shareholder Stockholder Representative of the Officer’s Claim CertificateNotice. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by Parent in the Officer’s Claim CertificateNotice. If the Shareholder Stockholder Representative does not deliver a Claim Dispute Notice to Parent prior to the expiration of such thirty (30)-day 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate Notice shall be deemed to have been conclusively determined in Parent’s favor for purposes of this Article 10 11 on the terms set forth in the Officer’s Claim Certificate Notice and (ii) if cash remains in the General Escrow Fund, then Parent may direct the Escrow Agent to deliver cash from the General Escrow Fund to Parent in accordance with this Section 10.04.
(de) If the Shareholder Stockholder Representative delivers a Claim Dispute Notice, then Parent and the Shareholder Stockholder Representative shall attempt in good faith to resolve any such objections raised by the Shareholder Stockholder Representative in such Claim Dispute Notice. If Parent and the Shareholder Stockholder Representative agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Parent and the Shareholder Stockholder Representative shall be prepared and signed by both parties and, if cash remains in the General Escrow Fund, promptly delivered to the Escrow Agent directing the Escrow Agent to distribute cash from the General Escrow Fund in accordance with the terms of such memorandum.
(ef) If no such resolution can be reached during the forty45-five (45)-day day period following Parent’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty45-five (45)-day day period, either Parent or the Shareholder Stockholder Representative may bring suit to resolve the objection in accordance with Sections 11.09, 11.10 and 11.11. The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be nonappealable, binding and conclusive upon the Parent, the Shareholder Representative and the Company Shareholders, and Parent and the Shareholder Representative shall promptly direct the Escrow Agent to act in accordance with such decision and distribute cash from the General Escrow Fund in accordance therewith. Judgment upon any award rendered by the trial court may be entered in any court having jurisdiction.11.08,
Appears in 1 contract