Notification of Claims. (a) Subject to the provisions of Section 12.3 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1, the Parent shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the Shareholders, and if applicable such Shareholder, all relevant information which is material to the claim and which is in the possession of the indemnified party. Parent’s failure to give a timely Claims Notice or to promptly furnish the Shareholders, and if applicable such Shareholder, with any relevant data and documents in connection with any Third-Party Claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnified party. (b) The Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders or, if applicable, such Shareholder, shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b). Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, or, if applicable, the Shareholder, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromise. (c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to the right of the Shareholders to dispute the Parent’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of this Article XII).
Appears in 3 contracts
Sources: Merger Agreement (Marchex Inc), Merger Agreement (Marchex Inc), Merger Agreement (Marchex Inc)
Notification of Claims. (a) Subject to the provisions of Section 12.3 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1, the Parent shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, Sole Stockholder with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the Shareholders, and if applicable such ShareholderSole Stockholder, all relevant information which is material to the claim and which is in the possession of the indemnified party. Parent’s failure to give a timely Claims Notice or to promptly furnish the Shareholders, and if applicable such ShareholderSole Stockholder, with any relevant data and documents in connection with any Third-Party Claim (as that term is hereinafter defined) shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnified partySole Stockholder.
(b) The Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, Sole Stockholder shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, ; however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders or, if applicable, such Shareholder, Sole Stockholder shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b)Sole Stockholder; provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b)12.1. Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, or, if applicable, the ShareholderSole Stockholder, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicableindemnification sought by the Parent involves a breach or alleged breach of the representations and warranties set forth in Section 3.11, the ShareholderParent and Surviving Corporation shall use commercially reasonable efforts to mitigate the liability of the Sole Stockholder on account thereof. Furthermore, has consented in writing Parent hereby agrees to any such settlement, adjustment or compromise, the Shareholders shall have no power or authority to object extend to the amount of Surviving Corporation or any claim successor thereto, any intellectual property risk management initiatives implemented by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromise.
(c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable a wholly-owned subsidiary of Parent, to the extent such third party for a monetary intellectual property risk management initiatives reasonably might mitigate shared intellectual property risks between the Parent or other obligation for which Parent expects to seek indemnification pursuant to this Article XIIany wholly owned subsidiary of Parent, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to the right of the Shareholders to dispute the Parent’s entitlement to indemnificationSurviving Corporation, or the amount for which it is entitled to indemnification, under the terms of this Article XII)any successor thereto.
Appears in 3 contracts
Sources: Merger Agreement (Marchex Inc), Merger Agreement (Marchex Inc), Merger Agreement (Marchex Inc)
Notification of Claims. (a) Subject to the provisions of Section 12.3 11.3 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.111.1, the Parent shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), Company and the Shareholder against whom indemnification is sought, Stockholders with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the Shareholders, Company and if applicable such Shareholderthe Stockholders, all relevant information which is material to the claim and which is in the possession of the indemnified party. Parent’s failure to give a timely Claims Notice or to promptly furnish the Shareholders, Company and if applicable such Shareholderthe Stockholders, with any relevant data and documents in connection with any Third-Party Claim (as that term is hereinafter defined) shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnified party.
(b) The Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), Company and the Shareholder against whom indemnification is sought, Stockholders shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders or, if applicable, such Shareholder, Company and the Stockholders shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) Company and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid Stockholders (including from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(bDeposit). Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, or, if applicable, Company and the ShareholderStockholders, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment delayed or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromiseconditioned.
(c) Notwithstanding the other provisions of this Section 12.211.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation and/or Buyer is liable to such third party for a monetary or other obligation for which Parent and/or Buyer expects to seek indemnification pursuant to this Article XIIXI, and Parent and/or Buyer reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent and/or Buyer shall be entitled to satisfy such obligation, without prior notice to or consent from the ShareholdersCompany or the Stockholders, (ii) Parent and/or Buyer may subsequently make a claim for indemnification in accordance with the provisions of this Article XIIXI, and (iii) Parent and/or Buyer shall be reimbursed, in accordance with the provisions of this Article XIIXI, for any such Losses for which it is entitled to indemnification pursuant to this Article XII XI (subject to the right of the Shareholders Seller to dispute the Parent’s and/or Buyer’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of this Article XIIXI).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Marchex Inc), Asset Purchase Agreement (Marchex Inc)
Notification of Claims. (a) Subject to the provisions of Section 12.3 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1, the Parent shall provide the Shareholders Shareholder Representative and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the ShareholdersShareholder Representative and, and if applicable applicable, such Shareholder, all relevant information which is material to the claim and which is in the possession of the indemnified party. Parent’s failure to give a timely Claims Notice or to promptly furnish the ShareholdersShareholder Representative and, and if applicable applicable, such Shareholder, with any relevant data and documents in connection with any Third-Party Claim (as that term is hereinafter defined) shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnified party.
(b) . The Shareholders Shareholder Representative and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders Shareholder Representative or, if applicable, such Shareholder, shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion (as defined below) of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b12.1 (b). Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the ShareholdersShareholder Representative, or, if applicable, the Shareholder, which consent shall not be unreasonably withheld. In the event that the ShareholdersShareholder Representative, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromise.
(c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to the right of the Shareholders to dispute the Parent’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of this Article XII).
Appears in 1 contract
Sources: Merger Agreement (Marchex Inc)
Notification of Claims. 13.4.1 Each Manager shall and shall use reasonable endeavours to procure that its Indemnified Persons shall (i) give notice promptly to BoI of any Claim against it or the commencement of any action, claim, suit, investigation or proceeding in respect of which a Claim for indemnification may be sought under this clause 13, and (ii) promptly notify BoI after any such action is formally commenced (by way of service with a summons or other legal process giving information as to the nature and basis of the claim) and shall keep BoI informed of, and, to the extent reasonably practicable, consult with BoI in relation to, all material developments in respect thereof, but in each case, provided that in each case no Manager or Indemnified Person shall be required to make any notification under this clause 13.4.1 if to do so would: (a) Subject to be inconsistent with the provisions terms of Section 12.3 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1, the Parent shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the Shareholders, and if applicable such Shareholder, all relevant information which is material to the claim and which is in the possession of the indemnified party. Parent’s failure to give a timely Claims Notice or to promptly furnish the Shareholders, and if applicable such Shareholder, with any relevant data and documents in connection with any Third-Party Claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnified party.
insurance policy; (b) The Shareholders andin such Indemnified Person’s opinion, if such indemnity acting in good faith, be materially prejudicial to it or any other Indemnified Person connected with it; (c) breach any obligation of confidentiality or other legal or regulatory obligation which that Indemnified Person owes to any third party; or (d) be inconsistent with any regulatory request that has been made of it. It is sought agreed that failure to so notify or keep BoI informed shall not relieve BoI from any liability set out in this clause 13 or otherwise.
13.4.2 In respect of each Claim brought against a Shareholder pursuant to Section 12.1(b)any Indemnified Person, BoI shall, unless the Shareholder Manager with which the Indemnified Person against whom indemnification the Claim has been made is soughtassociated elects to assume the defence themselves, assume the defence thereof and appoint lawyers satisfactory to the Indemnified Person and shall be liable to pay the fees and expenses of such lawyers and assume the defence related to such Claim. In any Claim, any Indemnified Person shall have the right to elect to join inretain its own lawyers and assume conduct of the defence themselves, through counsel but the fees and expenses of its choosing reasonably acceptable to Parent, such lawyers shall be at the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel the Indemnified Person unless:
(A) BoI and any counsel chosen by the Shareholders or, if applicable, such Shareholder, Indemnified Person shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable have mutually agreed to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b). Parent shall have retention of such lawyers;
(B) the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, or, if applicable, the Shareholder, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, has consented in writing named parties to any such settlement, adjustment proceeding (including any joined parties) include BoI and the Indemnified Person and representation of both BoI and the Indemnified Persons by the same lawyers (in the opinion of the Manager with which the Indemnified Person is associated) would be or compromise, the Shareholders shall have no power becomes inappropriate due to actual or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromise.potential conflicting interests between them;
(cC) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XIIclause 13.4.2, the Indemnified Person has elected to assume the defence itself or BoI has failed to appoint lawyers satisfactory to the Indemnified Person; or
(D) the relevant Indemnified Person’s insurers confirm in writing that rights under its policies of insurance may be prejudiced. It is understood that BoI shall reimburse such fees and Parent reasonably determines expenses as they are incurred in respect of clauses 13.4.2(A), 13.4.2(B), 13.4.2(C) or 13.4.2(D).
13.4.3 BoI agrees that if it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from becomes aware of any Claim relevant for the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions purpose of this Article XIIclause 13 or any matter which may give rise to a Claim, it shall promptly notify the Managers thereof and (iii) Parent shall be reimbursed, in accordance promptly provide the Managers with the provisions such information and copies of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject documents relating to the right Claim as they may reasonably request, save where to do so would (a) breach any statutory or regulatory obligation which BoI owes to any third party; or (b) be inconsistent with any regulatory request that has been made of the Shareholders to dispute the Parent’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of this Article XII)it.
Appears in 1 contract
Sources: Placing and Rights Issue Underwriting and Sponsors’ Agreement (Governor & Co of the Bank of Ireland)
Notification of Claims. (a) Subject to the provisions of Section 12.3 11.3 below, in the event of the occurrence of an event pursuant to which the Parent Buyer shall seek indemnity pursuant to Section 12.111.1, the Parent Buyer shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, Stockholder Representative with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the Shareholders, and if applicable such ShareholderStockholder Representative, all relevant information which is material to the claim and which is in the possession of the indemnified party. ParentThe Buyer’s failure to give a timely Claims Notice or to promptly furnish the Shareholders, and if applicable such ShareholderStockholder Representative, with any relevant data and documents in connection with any Third-Party Claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnified indemnifying party.
(b) The Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, Stockholder Representative shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parentthe Buyer, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the ParentBuyer; provided, however, that Parent the Buyer shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parentthe Buyer’s counsel and any counsel chosen by the Shareholders or, if applicable, such Shareholder, Stockholder [***] Certain information in this agreement has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. Representative shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b)Stockholders. Parent The Buyer shall have the right to settle any such Third Party Claim; provided, however, that Parent the Buyer may not effect the a settlement, adjustment or compromise of or a confession of judgment to any such Third Party Claim without the written consent of the Shareholders, or, if applicable, the ShareholderStockholder Representative, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment delayed or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromiseconditioned.
(c) Notwithstanding the other provisions of this Section 12.211.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation the Buyer is liable to such third party for a monetary or other obligation for which Parent the Buyer expects to seek indemnification pursuant to this Article XIIXI, and Parent the Buyer reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent the Buyer shall be entitled to satisfy such obligation, without prior notice to or consent from the ShareholdersStockholder Representative, (ii) Parent the Buyer may subsequently make a claim for indemnification in accordance with the provisions of this Article XIIXI, and (iii) Parent the Buyer shall be reimbursed, in accordance with the provisions of this Article XIIXI, for any such Losses for which it is entitled to indemnification pursuant to this Article XII XI (subject to the right of the Shareholders Stockholder Representative to dispute the ParentBuyer’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of this Article XIIXI).
Appears in 1 contract
Notification of Claims. (a) Subject to the provisions of Section 12.3 10.3 below, in the event of the occurrence of an event pursuant to which the Parent Buyer shall seek indemnity pursuant to Section 12.110.1, the Parent Buyer shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, Sellers with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the Shareholders, and if applicable such ShareholderSellers, all relevant information which is material to the claim and which is in the possession of the indemnified partyIndemnified Party. ParentThe Buyer’s failure to give a timely Claims Claim Notice or to promptly furnish the Shareholders, and if applicable such Shareholder, Sellers with any relevant data and documents in connection with any Third-Party Claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnified partyIndemnified Party.
(b) The Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, Sellers shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parentthe Buyer, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the ParentBuyer; provided, however, that Parent the Buyer shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parentthe Buyer’s counsel and any counsel chosen by the Shareholders or, if applicable, such Shareholder, Sellers shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b)Sellers. Parent The Buyer shall have the right to settle any such Third Party Claim; provided, however, that Parent the Buyer may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, or, if applicable, the ShareholderSellers, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment delayed or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromiseconditioned.
(c) Notwithstanding the other provisions of this Section 12.210.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation the Buyer is liable to such third party for a monetary or other obligation for which Parent the Buyer expects to seek indemnification pursuant to this Article XIIX, and Parent the Buyer reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent the Buyer shall be entitled to satisfy such obligation, without prior notice to or consent from the ShareholdersSellers, (ii) Parent the Buyer may subsequently make a claim for indemnification in accordance with the provisions of this Article XIIX, and (iii) Parent the Buyer shall be reimbursed, in accordance with the provisions of this Article XIIX, for any such Losses for which it is entitled to indemnification pursuant to this Article XII X (subject to the right of the Shareholders Company to dispute the ParentBuyer’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of this Article XIIX).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Revolution Lighting Technologies, Inc.)
Notification of Claims. (a) Subject to the provisions of Section 12.3 ---------------------- 11.4 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1asserts constitutes an Indemnity Claim, the Parent shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), Representative (on behalf of the Shareholder against whom indemnification is sought, indemnifying parties) with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the Shareholders, and if applicable such Shareholder, Representative all relevant information which is material to the claim and which is in the possession of the indemnified party. If such event involves the claim of any third party (a "Third-Party Claim"), the Representative as the indemnifying party shall have the right to elect to join in the defense, settlement, adjustment or compromise of any such Third-Party Claim, and, if he so elects to control such defense, settlement, adjustment or compromise, and to employ counsel to assist such indemnifying party in connection with the handling of such claim, at the sole expense of the indemnifying party, to be paid from amounts held in escrow by the Escrow Agent in accordance with the terms of the Escrow Agreement. Unless the Representative elects to assume such defense, settlement, adjustment or compromise, Parent shall have the right to settle any such Third-Party Claim; provided, however, that Parent may not effect the settlement, adjustment or -------- ------- compromise of any such Third-Party Claim without the consent of the Representative, which consent shall not be unreasonably withheld. In the event that the Representative has consented to any such settlement, adjustment or compromise, the Representative shall have no power or authority to object to the amount of any claim by Parent against the escrow for indemnity with respect to such settlement, adjustment or compromise. The Representative shall have the right to settle, adjust, or compromise any Third-Party Claim, the defense of which is controlled by the Representative, using amounts held in escrow; provided, however, that, unless the settlement, adjustment or compromise -------- ------- involves no more than the payment of an amount that is less than the amount of funds then remaining in the escrow and provides for the unconditional release of Parent’s , the Company and their respective affiliates, the Representative may not effect the settlement, adjustment, compromise or satisfaction of any such Third- Party Claim without the consent of the Parent, which consent shall not be unreasonably withheld. Parent's failure to give a timely Claims Notice notice or to promptly furnish the Shareholders, and if applicable such Shareholder, Representative with any relevant data and documents in connection with any Third-Party Claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnifying party. In connection with any Third-Party Claim, the indemnified party.
(b) The Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders or, if applicable, such Shareholder, shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b). Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, or, if applicable, the Shareholder, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromise.
(c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to the right of the Shareholders to dispute the Parent’s entitlement to indemnification, or the amount for which indemnifying party if it is entitled has assumed the defense of such claim pursuant to indemnificationthe preceding sentence, under shall diligently pursue the terms defense of this Article XII)such Third-Party Claim.
Appears in 1 contract
Sources: Merger Agreement (Lycos Inc)
Notification of Claims. (a) Subject to the provisions of Section 12.3 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1, the Parent shall provide the Shareholders Stockholder Representative, and, if such indemnity is sought against a Shareholder Stockholder pursuant to Section 12.1(b), the Shareholder Stockholder against whom indemnification is sought, with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the ShareholdersStockholder Representative, and and, if applicable applicable, such ShareholderStockholder, all relevant information which is material to the claim and which is in the possession of the indemnified party. Parent’s failure to give a timely Claims Notice or to promptly furnish the ShareholdersStockholder Representative, and and, if applicable applicable, such ShareholderStockholder, with any relevant data and documents in connection with any Third-Party Claim (as that term is hereinafter defined) shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnified party.
(b) The Shareholders Stockholder Representative and, if such indemnity indemnification is sought against a Shareholder Stockholder pursuant to Section 12.1(b), ) the Shareholder Stockholder against whom indemnification is sought, shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, ; however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders orStockholder Representative, or if applicable, such Shareholderthe Stockholder, shall be borne by the Shareholders Stockholders with respect to indemnification sought pursuant to Section 12.1(a12.1 (a) and by the Shareholders Stockholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a12.1 (a) and from the Pro Rata Portion (as defined below) of the Escrow Deposit attributable to the Shareholders Stockholders against whom indemnification is sought pursuant to Section 12.1(b). Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the ShareholdersStockholder Representative, or, if applicable, the ShareholderStockholder, which consent shall not be unreasonably withheld. In the event that the ShareholdersStockholder Representative, or, if applicable, the ShareholderStockholder, has consented in writing to any such settlement, adjustment or compromise, the Shareholders Stockholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromise.
(c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to the right of the Shareholders to dispute the Parent’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of this Article XII).
Appears in 1 contract
Notification of Claims. (a) Subject to the provisions of Section 12.3 11.3 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.111.1, the Parent shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, Sole Stockholder with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the Shareholders, and if applicable such ShareholderSole Stockholder, all relevant information which is material to the claim and which is in the possession of the indemnified party. Parent’s failure to give a timely Claims Notice or to promptly furnish the Shareholders, and if applicable such ShareholderSole Stockholder, with any relevant data and documents in connection with any Third-Party Claim (as that term is hereinafter defined) shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnified party.
(b) The Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, Sole Stockholder shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders or, if applicable, such Shareholder, Sole Stockholder shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid Sole Stockholder (including from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(bDeposit). Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the ShareholdersSole Stockholder, or, if applicablewhich consent shall not be unreasonably withheld.
(c) Notwithstanding the foregoing, the ShareholderSole Stockholder shall have the right to elect to join in, and in such event to conduct and control, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any Third Party Claim for which indemnification will be sought by Parent for domain and/or trademark infringement (a “Domain Name Claim”), for a Tax Claim (as such term is defined in Section 11.3) and for a claim related to the disclosure set forth on Schedule 2.8(3) (a “Schedule 2.8(3) Claim”) for the period ending on consummation of the Closing. The expense of any such defense, settlement, adjustment or compromise, including such counsel, shall be borne by the Sole Stockholder (including from the Escrow Deposit). Unless the Sole Stockholder elects to assume such defense, settlement, adjustment or compromise, Parent shall have the right to settle any such Domain Name Claim, Tax Claim or Schedule 2.8(3) Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Domain Name Claim, Tax Claim or Schedule 2.8(3) Claim without the written consent of the Sole Stockholder, which consent shall not be unreasonably withheld. In The Sole Stockholder may not effect the event that the Shareholderssettlement, oradjustment, if applicable, the Shareholder, has consented in writing to compromise or satisfaction of any such settlementDomain Name Claim, adjustment Tax Claim or compromiseSchedule 2.8(3) Claim without the consent of the Parent, which consent shall not be unreasonably withheld. Notwithstanding the Shareholders foregoing, Parent shall have no power or authority the right at any time to object assume and in such event to thereafter conduct and control the amount defense of any claim Domain Name Claim, Tax Claim or Schedule 2.8(3) Claim being defended by Parent against the Escrow Deposit for indemnification of Losses with respect to Sole Stockholder in which such settlement, adjustment or compromise.
(c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) event Parent shall not be entitled to satisfy indemnification hereunder for such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to the right of the Shareholders to dispute the Parent’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of this Article XII)claim.
Appears in 1 contract
Notification of Claims. (a) Subject to the provisions of Section 12.3 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1, the Parent shall provide the Shareholders Shareholder Representative and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the ShareholdersShareholder Representative and, and if applicable applicable, such Shareholder, all relevant information which is material to the claim and which is in the possession of the indemnified party. Parent’s failure to give a timely Claims Notice or to promptly furnish the ShareholdersShareholder Representative and, and if applicable applicable, such Shareholder, with any relevant data and documents in connection with any Third-Party Claim (as that term is hereinafter defined) shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnified party.
(b) . The Shareholders Shareholder Representative and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders Shareholder Representative or, if applicable, such Shareholder, shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion (as defined below) of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b). Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the ShareholdersShareholder Representative, or, if applicable, the Shareholder, which consent shall not be unreasonably withheld. In the event that the ShareholdersShareholder Representative, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromise.
(c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to the right of the Shareholders to dispute the Parent’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of this Article XII).
Appears in 1 contract
Sources: Merger Agreement (Marchex Inc)
Notification of Claims. (a) Subject to the provisions of Section 12.3 below, in In the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1an Indemnified Person asserts constitutes an event in respect of which indemnification may be sought from an indemnitor hereunder, the Parent such Indemnified Person shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, indemnitors with prompt written notice (a “Claim Notice”) of such event (“Claim”) and shall otherwise promptly make available to the Shareholders, and if applicable such Shareholder, indemnitor all relevant information which is material to the claim Claim and which is in the possession of the indemnified partyIndemnified Person. ParentIf such event involves a Claim brought by any third party (a “Third-Party Claim”), the indemnitors shall have the right to elect to join in the defense, settlement, adjustment or compromise of any such Third-Party Claim, and to employ counsel to assist such indemnitor in connection with the handling of such Claim, at the sole expense of the indemnitor, and no such Claim shall be settled, adjusted or compromised, or the defense thereof terminated, without the prior written consent of the indemnitor unless and until the indemnitor shall have failed, after the lapse of a reasonable period of time, but in no event more than thirty (30) days after notice of such Claim, to join in the defense, settlement, adjustment or compromise of the same. An Indemnified Person’s failure to give a timely Claims Notice notice or to promptly furnish the Shareholders, and if applicable such Shareholder, indemnitors with any relevant data and documents in connection with any Third-Party Claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such partyPerson, except and only to the extent that such failure shall result in any material prejudice to the indemnified party.
(b) The Shareholders andindemnitors. If so desired by any of the indemnitors, if such indemnity is sought against a Shareholder pursuant indemnitor may elect, at such indemnitor’s sole expense, to Section 12.1(b), the Shareholder against whom indemnification is sought, shall have the right to elect to join in, through counsel assume control of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Third-Party Claim”) for which indemnification will , provided that before entering into any settlement, adjustment or compromise of such claim, or ceasing to defend against such Claim, if as a result thereof, or pursuant thereto, there would be sought imposed on any Indemnified Person any liability or obligation not covered by the Parent; providedindemnification obligations of the indemnitors under this Agreement (including, howeverwithout limitation, that Parent any injunctive relief or other remedy), such indemnitors shall obtain the written consent of such Indemnified Persons (which consent shall not be unreasonably withheld, conditioned or delayed). After an indemnitor assumes control of the defense, settlement, adjustment or compromise of a claim, any Indemnified Person shall be entitled to participate in such defense, settlement, adjustment or compromise. The expense compromise through counsel of any its own choosing; provided that the fees and expenses of such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders or, if applicable, such Shareholder, shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b). Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, or, if applicable, the Shareholder, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromiseIndemnified Person.
(c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to the right of the Shareholders to dispute the Parent’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of this Article XII).
Appears in 1 contract
Notification of Claims. (a) Subject to the provisions of Section 12.3 11.4 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1asserts constitutes an Indemnity Claim, the Parent shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), Representative (on behalf of the Shareholder against whom indemnification is sought, indemnifying parties) with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the Shareholders, and if applicable such Shareholder, Representative all relevant information which is material to the claim and which is in the possession of the indemnified party. If such event involves the claim of any third party (a "Third-Party Claim"), the Representative as the indemnifying party shall have the right to elect to join in the defense, settlement, adjustment or compromise of any such Third-Party Claim, and, if he so elects to control such defense, settlement, adjustment or compromise, and to employ counsel to assist such indemnifying party in connection with the handling of such claim, at the sole expense of the indemnifying party, to be paid from amounts held in escrow by the Escrow Agent in accordance with the terms of the Escrow Agreement. Unless the Representative elects to assume such defense, settlement, adjustment or compromise, Parent shall have the right to settle any such Third-Party Claim; PROVIDED, HOWEVER, that Parent may not effect the settlement, adjustment or compromise of any such Third-Party Claim without the written consent of the Representative, which consent shall not be unreasonably withheld. In the event that the Representative has consented in writing to any such settlement, adjustment or compromise, the Representative shall have no power or authority to object to the amount of any claim by Parent against the escrow for indemnity with respect to such settlement, adjustment or compromise. The Representative shall have the right to settle, adjust, or compromise any Third-Party Claim, the defense of which is controlled by the Representative, using amounts held in escrow; PROVIDED, HOWEVER, that, unless the settlement, adjustment or compromise involves no more than the payment of an amount that is less than the amount of funds then remaining in the escrow and provides for the unconditional release of Parent’s , the Company and their respective affiliates, the Representative may not effect the settlement, adjustment, compromise or satisfaction of any such Third-Party Claim without the consent of the Parent, which consent shall not be unreasonably withheld. Parent's failure to give a timely Claims Notice notice or to promptly furnish the Shareholders, and if applicable such Shareholder, Representative with any relevant data and documents in connection with any Third-Party Claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnifying party. In connection with any Third-Party Claim, the indemnified party.
(b) The Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders or, if applicable, such Shareholder, shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b). Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, or, if applicable, the Shareholder, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromise.
(c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to the right of the Shareholders to dispute the Parent’s entitlement to indemnification, or the amount for which indemnifying party if it is entitled has assumed the defense of such claim pursuant to indemnificationthe preceding sentence, under shall diligently pursue the terms defense of this Article XII)such Third-Party Claim.
Appears in 1 contract
Sources: Merger Agreement (Go2net Inc)
Notification of Claims. (a) Subject to the provisions of Section 12.3 8.4 ---------------------- below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1asserts constitutes an Indemnity Claim, the Parent shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), Representative (on behalf of the Shareholder against whom indemnification is sought, indemnifying parties) with prompt written notice (a “Claim Notice”) of such event (in any event no later than twenty days of an executive officer of Parent obtaining knowledge of such event) and shall otherwise promptly make available to the Shareholders, and if applicable such Shareholder, Representative all relevant information which is material to the claim and which is in the possession of the indemnified party. If such event involves the claim of any third party (a "Third-Party Claim"), the Representatives as the indemnifying party shall have the right to elect to join in the defense, settlement, adjustment or compromise of any such Third-Party Claim, and, if they so elect to assume the control of such defense, settlement, adjustment or compromise. The Representatives shall be entitled to employ counsel to assist such indemnifying party in connection with the handling of such claim, at the sole expense of the indemnifying party, to be paid as incurred from amounts held in escrow by the Escrow Agent in accordance with the terms of the Escrow Agreement. Unless the Representatives elect to assume such defense, settlement, adjustment or compromise, Parent shall have the right to settle any such Third-Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third-Party Claim without the consent of the Representatives, which consent shall not be unreasonably withheld. In the event that the Representatives have consented to any such settlement, adjustment or compromise, the Representatives shall have no power or authority to object to the amount of any claim by Parent against the escrow for indemnity with respect to such settlement, adjustment or compromise. The Representatives shall have the right to settle, adjust, or compromise any Third- Party Claim, the defense of which is controlled by the Representatives, using amounts held in escrow; provided, however, that, unless the settlement, adjustment or compromise involves no more than the payment of an amount that is equal to or less than the amount of funds then remaining in the escrow and provides for the unconditional release of Parent’s , the Company and their respective affiliates, the Representative may not effect the settlement, adjustment, compromise or satisfaction of any such Third-Party Claim without the consent of the Parent, which consent shall not be unreasonably withheld. Parent's failure to give a timely Claims Notice notice (subject to Section 8.4) or to promptly furnish the Shareholders, and if applicable such Shareholder, Representative with any relevant data and documents in connection with any Third-Party Claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnifying party. In connection with any Third-Party Claim, the indemnified party.
(b) The Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders or, if applicable, such Shareholder, shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b). Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, or, if applicable, the Shareholder, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromise.
(c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to the right of the Shareholders to dispute the Parent’s entitlement to indemnification, or the amount for which indemnifying party if it is entitled to indemnificationhas assumed the defense of such claim, under shall diligently pursue the terms defense of this Article XII)such Third-Party Claim.
Appears in 1 contract
Sources: Merger Agreement (Lycos Inc)
Notification of Claims. (a) Subject to the provisions of Section 12.3 below10.3, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.110.1, the Parent shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, Representatives with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the Shareholders, and if applicable such ShareholderSellers, all relevant information which is material to the claim and which is in the possession of the indemnified party. The Parent’s failure to give a timely Claims Notice or to promptly furnish the Shareholders, and if applicable such ShareholderShareholder Representative, with any relevant data and documents in connection with any Third-Party Claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnified party.
(b) The Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, Representatives shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to the Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, however, [***] Certain information in this agreement has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. that the Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including the Parent’s counsel and any counsel chosen by the Shareholders or, if applicable, such Shareholder, Shareholder Representatives shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b)Sellers. The Parent shall have the right to settle any such Third Party Claim; provided, however, that the Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, or, if applicable, the ShareholderShareholder Representatives, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment delayed or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromiseconditioned.
(c) Notwithstanding the other provisions of this Section 12.210.2(c), if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation the Buyer is liable to such third party for a monetary or other obligation for which Parent the Buyer expects to seek indemnification pursuant to this Article XIIX, and Parent the Buyer reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent the Buyer shall be entitled to satisfy such obligation, without prior notice to or consent from the ShareholdersShareholder Representatives, (ii) Parent the Buyer may subsequently make a claim for indemnification in accordance with the provisions of this Article XIIX, and (iii) Parent the Buyer shall be reimbursed, in accordance with the provisions of this Article XIIX, for any such Losses for which it is entitled to indemnification pursuant to this Article XII X (subject to the right of the Shareholders Seller to dispute the ParentBuyer’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of this Article XIIX).
Appears in 1 contract
Notification of Claims. (a) Subject to the provisions of Section 12.3 below, in In the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1an indemnified Person asserts constitutes an event in respect of which indemnification may be sought from an indemnitor hereunder, the Parent such indemnified Person shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, indemnitors with prompt written notice (a “Claim Notice”) of such event ("Claim") and shall otherwise promptly make available to the Shareholders, and if applicable such Shareholder, indemnitor all relevant information which is material to the claim Claim and which is in the possession of the indemnified partyPerson. ParentIf such event involves a Claim brought by any third party (a "Third-Party Claim"), the indemnitors shall have the right to elect to join in the defense, settlement, adjustment or compromise of any such Third-Party Claim, and to employ counsel to assist such indemnitor in connection with the handling of such Claim, at the sole expense of the indemnitor, and no such Claim shall be settled, adjusted or compromised, or the defense thereof terminated, without the prior written consent of the indemnitor unless and until the indemnitor shall have failed, after the lapse of a reasonable period of time, but in no event more than thirty (30) days after notice of such Claim, to join in the defense, settlement, adjustment or compromise of the same. An indemnified Person’s failure to give a timely Claims Notice notice or to promptly furnish the Shareholders, and if applicable such Shareholder, indemnitors with any relevant data and documents in connection with any Third-Party Claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such partyPerson, except and only to the extent that such failure shall result in any material prejudice to the indemnified party.
(b) The Shareholders andindemnitors. If so desired by any of the indemnitors, if such indemnity is sought against a Shareholder pursuant indemnitor may elect, at such indemnitor’s sole expense, to Section 12.1(b), the Shareholder against whom indemnification is sought, shall have the right to elect to join in, through counsel assume control of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Third-Party Claim”) for which indemnification will , provided that before entering into any settlement, adjustment or compromise of such claim, or ceasing to defend against such Claim, if as a result thereof, or pursuant thereto, there would be sought imposed on any indemnified Person any liability or obligation not covered by the Parent; providedindemnification obligations of the indemnitors under this Agreement (including, howeverwithout limitation, that Parent any injunctive relief or other remedy), such indemnitors shall obtain the written consent of such indemnified Persons (which consent shall not be unreasonably withheld, conditioned or delayed). After an indemnitor assumes control of the defense, settlement, adjustment or compromise of a claim, any indemnified Person shall be entitled to participate in such defense, settlement, adjustment or compromise. The expense compromise through counsel of any its own choosing; provided that the fees and expenses of such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders or, if applicable, such Shareholder, shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b). Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, or, if applicable, the Shareholder, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromiseindemnified Person.
(c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to the right of the Shareholders to dispute the Parent’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of this Article XII).
Appears in 1 contract
Sources: Contribution Agreement (Millennium Electronics Inc)
Notification of Claims. (a) Subject to the provisions of Section 12.3 11.4 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1asserts constitutes an Indemnity Claim, the Parent shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), Representative (on behalf of the Shareholder against whom indemnification is sought, indemnifying parties) with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the Shareholders, and if applicable such Shareholder, Representative all relevant information which is material to the claim and which is in the possession of the indemnified party. If such event involves the claim of any third party (a "Third-Party Claim"), the Representative as the indemnifying party shall have the right to elect to join in the defense, settlement, adjustment or compromise of any such Third-Party Claim, and, if he so elects, to control such defense, settlement, adjustment or compromise, and to employ counsel to assist such indemnifying party in connection with the handling of such claim, at the sole expense of the indemnifying party, to be paid from amounts held in escrow by the Escrow Agent in accordance with the terms of the Escrow Agreement. Unless the Representative elects to assume such defense, settlement, adjustment or compromise, Parent shall have the right to settle any such Third-Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third-Party Claim without the consent of the Representative, which consent shall not be unreasonably withheld. In the event that the Representative has consented to any such settlement, adjustment or compromise, the Representative shall have no power or authority to object to the amount of any claim by Parent against the escrow for indemnity with respect to such settlement, adjustment or compromise, provided such amount is not in excess of the amount actually paid by Parent with respect to such Third Party Claim. The Representative shall have the right to settle, adjust, or compromise any Third-Party Claim, the defense of which is controlled by the Representative, using amounts held in escrow; provided, however, that, unless the settlement, adjustment or compromise involves no more than the payment of an amount that is less than the amount of funds then remaining in the escrow and provides for the unconditional release of Parent’s , the Company and their respective affiliates, the Representative may not effect the settlement, adjustment, compromise or satisfaction of any such Third-Party Claim without the consent of the Parent, which consent shall not be unreasonably withheld. Parent's failure to give a timely Claims Notice notice or to promptly furnish the Shareholders, and if applicable such Shareholder, Representative with any relevant data and documents in connection with any Third-Party Claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnifying party. In connection with any Third-Party Claim, the indemnified party.
(b) The Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders or, if applicable, such Shareholder, shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b). Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, or, if applicable, the Shareholder, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromise.
(c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to the right of the Shareholders to dispute the Parent’s entitlement to indemnification, or the amount for which indemnifying party if it is entitled has assumed the defense of such claim pursuant to indemnificationthe preceding sentence, under shall diligently pursue the terms defense of this Article XII)such Third-Party Claim.
Appears in 1 contract
Sources: Merger Agreement (Lycos Inc)
Notification of Claims. (a) Subject to the provisions of Section 12.3 belowthis Article IX, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1Surviving Corporation asserts constitutes an Indemnity Claim, the Parent Surviving Corporation shall provide the Shareholders andPrincipal Shareholder, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), as the Shareholder against whom indemnification is soughtrepresentative of the Ntera shareholders, with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the Shareholders, and if applicable such Shareholder, Principal Shareholder all relevant information which is material to the claim claim, including information with respect to the availability of insurance coverage, and which is in the possession of the indemnified partyIndemnified Party. ParentIf such event involves the claim of any third party (a “Third Party Claim”), the Principal Shareholder shall have the right to elect to join in the defense, settlement, adjustment or compromise of any such Third Party Claim, and to employ counsel to assist the Surviving Corporation in connection with the handling of such claim, at the sole expense of the Principal Shareholder, and no such claim shall be settled, adjusted or compromised, or the defense thereof terminated, without the prior consent of the Principal Shareholder unless and until the Principal Shareholder shall have failed, after the lapse of a reasonable period of time, but in no event more than 30 days after written notice to it of the Third Party Claim, to join in the defense, settlement, adjustment or compromise of the same. Upon receipt of written notice of any Third Party Claim, the Surviving Corporation shall promptly, but in no event later than 15 days prior to the date a response or answer thereto is due (unless a response or answer is due within fewer than 15 days from the date the Surviving Corporation received notice thereof and then so long as reasonably possible prior to the due date thereof), inform the Principal Shareholder in writing thereof. The Surviving Corporation’s failure to give a timely Claims Notice notice as provided above or to promptly furnish the Shareholders, and if applicable such Shareholder, Principal Shareholder with any relevant data and documents in connection with any Third-Third Party Claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any material prejudice to the indemnified party.
(b) Ntera shareholders. The Shareholders andPrincipal Shareholder may elect, if such indemnity is sought against a Shareholder pursuant at his sole expense, to Section 12.1(b), the Shareholder against whom indemnification is sought, shall have the right to elect to join in, through counsel assume control of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by , with counsel reasonably acceptable to the Parent; providedSurviving Corporation, however, that Parent shall control insofar as such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by claim relates to the Shareholders or, if applicable, such Shareholder, shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion liability of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b)Ntera shareholders. Parent shall have the right to settle In connection with any such Third Party Claim; provided, howeverthe Surviving Corporation, that Parent may not effect or the settlementPrincipal Shareholder if he has assumed the defense of such claim pursuant to the preceding sentence, adjustment or compromise shall diligently pursue the defense of any such Third Party Claim without and the written consent Surviving Corporation shall cooperate with the Principal Shareholder in connection with such claim, make available personnel, witnesses, books and records relevant thereto and grant such authorizations to the agents, representatives and counsel of the Shareholders, or, if applicable, the Shareholder, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromise.
(c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from as the Shareholders, (ii) Parent Principal Shareholder may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to the right of the Shareholders to dispute the Parent’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of this Article XII)request.
Appears in 1 contract
Notification of Claims. (a) Subject to the provisions of Section 12.3 8.3 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.18.1, the Parent shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, Stockholders with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the ShareholdersStockholders, and if applicable such ShareholderStockholder, all relevant information which is material to the claim and which is in the possession of the indemnified partyParent. The Parent’s failure to give a timely Claims Notice or to promptly furnish the ShareholdersStockholders, and if applicable such ShareholderStockholder, with any relevant data and documents in connection with any Third-Party Claim shall not constitute a defense (in part or in whole) to any [***] Certain information in this agreement has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnified party.
(b) The Shareholders Stockholders and, if such indemnity is sought against a Shareholder Stockholder pursuant to Section 12.1(b)8.1(ii) or 8.1(iii) above, the Shareholder Stockholder against whom indemnification is sought, sought shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to the Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, however, that the Parent shall control such defense, settlement, adjustment or compromisecompromise in good faith consultation with the Stockholders or Stockholder. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders Stockholders or, if applicable, such ShareholderStockholder, shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, Stockholders or such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b)Stockholder. The Parent shall have the right to settle any such Third Party Claim; provided, however, that the Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, Stockholders or, if applicable, the ShareholderStockholder, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment delayed or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromiseconditioned.
(c) Notwithstanding the other provisions of this Section 12.28.2, if a third party asserts (other than by means of a lawsuit) that the Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which the Parent expects to seek indemnification pursuant to this Article XIIARTICLE VIII, and the Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) the Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the ShareholdersStockholders, (ii) the Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XIIARTICLE VIII, and (iii) the Parent shall be reimbursed, in accordance with the provisions of this Article XIIARTICLE VIII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII ARTICLE VIII (subject to the right of the Shareholders Stockholders to dispute the Parent’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of this Article XIIARTICLE VIII).
(d) This Section 8.2 shall not apply to any Tax Proceedings, which shall instead by governed by Section 5.2(e).
Appears in 1 contract
Sources: Merger Agreement (Marchex Inc)
Notification of Claims. (a) Subject to the provisions of Section 12.3 11.3 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1asserts constitutes an Indemnity Claim, the Parent shall provide the Shareholders and, if such indemnity is sought against a Principal Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the Shareholders, and if applicable such Shareholder, Principal Shareholder all relevant information which is material to the claim and which is in the possession of the indemnified party. If such event involves the claim of any third party (a "Third-Party Claim"), the Principal Shareholder as the indemnifying party shall have the right to elect to join in the defense, settlement, adjustment or compromise of any such Third-Party Claim, and, if he so elects to control such defense, settlement, adjustment or compromise, and to employ counsel to assist such indemnifying party in connection with the handling of such claim, at the sole expense of the indemnifying party, in the case of the Principal Shareholder as the indemnifying party, to be paid from amounts held in escrow by the Escrow Agent in accordance with the terms of the Escrow Agreement. Unless the Principal Shareholder elects to assume such defense, settlement, adjustment or compromise, Parent shall have the right to settle any such Third-Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third-Party Claim without the written consent of the Principal Shareholder, which consent shall not be unreasonably withheld. In the event that the Principal Shareholder has consented in writing to any such settlement, adjustment or compromise, the Principal Shareholder shall have no power or authority to object to the amount of any claim by Parent against the escrow for indemnity with respect to such settlement, adjustment or compromise. The Principal Shareholder shall have the right to settle, adjust, or compromise any Third-Party Claim, the defense of which is controlled by the Principal Shareholder, using amounts held in escrow; provided, however, that, unless the settlement, adjustment or compromise involves no more than the payment of an amount that is less than the amount of funds then remaining in the escrow and provides for the unconditional release of Parent’s , the Company and their respective affiliates, the Principal Shareholder may not effect the settlement, adjustment, compromise or satisfaction of any such Third-Party Claim without the consent of the Parent, which consent shall not be unreasonably withheld. Parent's failure to give a timely Claims Notice notice or to promptly furnish the Shareholders, and if applicable such Shareholder, Representative with any relevant data and documents in connection with any Third-Party Claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnifying party. In connection with any ThirdParty Claim, the indemnified party.
(b) The Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders or, if applicable, such Shareholder, shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b). Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, or, if applicable, the Shareholder, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromise.
(c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to the right of the Shareholders to dispute the Parent’s entitlement to indemnification, or the amount for which indemnifying party if it is entitled has assumed the defense of such claim pursuant to indemnificationthe preceding sentence, under shall diligently pursue the terms defense of this Article XII)such ThirdParty Claim.
Appears in 1 contract
Sources: Merger Agreement (Go2net Inc)
Notification of Claims. (a) Subject 4.1 Without prejudice to the provisions any other provision of Section 12.3 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1, the Parent shall provide the Shareholders andthis Tax Undertaking, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, with prompt written notice (a “Claim Notice”) Purchaser or the Company shall become aware of such event and shall otherwise promptly make available to the Shareholders, and if applicable such Shareholder, all relevant information any Demand which is material to the claim and which is in the possession of the indemnified party. Parent’s failure to give a timely Claims Notice may or to promptly furnish the Shareholders, and if applicable such Shareholder, with any relevant data and documents in connection with any Third-Party Claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall will result in any prejudice claim against the Warrantors under this Tax Undertaking, the Purchaser shall as soon as reasonably practicable give or procure the giving of written notice thereof to the indemnified partyWarrantors setting out reasonable details of the Demand.
4.2 Subject to Clause 4.3 and to the Warrantors indemnifying and securing the Purchaser and/or the Company to the Purchaser's reasonable satisfaction against any costs, claims, liabilities and expenses (bincluding interest on overdue Tax) which may be incurred thereby, the Purchaser shall procure at the request in writing of or on behalf of the Warrantors that the Company shall give the Warrantors such reasonable co-operation and assistance for the purposes of disputing, resisting, appealing, compromising or defending such Demand or any further Demand arising therefrom as aforesaid as the Warrantors may reasonably by written notice request.
4.3 The Shareholders andPurchaser and the Company shall be at liberty without reference to the Warrantors to admit, compromise, settle, discharge or otherwise deal with any Demand if such indemnity is sought against a Shareholder the Warrantors decline to give, or delay unreasonably in giving or fail to give within 14 days of the relevant notice given to them pursuant to Section 12.1(b)Clause 4.1, the Shareholder against whom indemnification is sought, shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defenserequest as is mentioned in Clause 4.2 above, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by in which case the Shareholders or, if applicable, such Shareholder, shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion liability of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b). Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, or, if applicable, the Shareholder, which consent Warrantors hereunder shall not be unreasonably withheld. In diminished or extinguished on the event grounds that the Shareholders, or, if applicable, Purchaser or the Shareholder, has consented in writing Company took or omitted to take any action with regard to such settlement, adjustment or compromise, claim.
4.4 The actions which the Shareholders Warrantors may reasonably request under paragraph 4.2 of this Tax Undertaking shall have no power or authority include (without limitation) the Company applying to object to postpone (so far as legally possible) the amount payment of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromise.
(c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII tax and/or (subject to the right approval of the Shareholders Purchaser (such approval not to be unreasonably withheld or delayed)) the instruction of such solicitors or other professional advisers as the Warrantors may nominate to act on behalf of the Company to the intent that the conduct and costs and expenses of the dispute shall be delegated entirely to and be borne solely by the Parent’s entitlement Warrantors, provided that neither the Purchaser nor the Company shall be required to indemnificationtake any action if, in the Purchaser's reasonable opinion, such action would be unduly onerous or materially prejudicial to the Purchaser or the amount for Company or their respective business or would increase any future liability to Taxation of the Purchaser and/or the Company.
4.5 In connection with the conduct of any dispute relating to a Tax liability to which it is entitled to indemnification, under the terms of this Article XII).Tax Undertaking applies:-
Appears in 1 contract
Sources: Share Sale Agreement (Weatherford International Inc /New/)
Notification of Claims. (a) Subject to the provisions of Section 12.3 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1, the Parent shall provide the Shareholders Shareholder Representative, and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the ShareholdersShareholder Representative, and and, if applicable applicable, such Shareholder, all relevant information which is material to the claim and which is in the possession of the indemnified party. Parent’s failure to give a timely Claims Notice or to promptly furnish the ShareholdersShareholder Representative, and and, if applicable applicable, such Shareholder, with any relevant data and documents in connection with any Third-Party Claim (as that term is hereinafter defined) shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnified party.
(b) The Shareholders Shareholder Representative and, if such indemnity indemnification is sought against a Shareholder pursuant to Section 12.1(b), ) the Shareholder against whom indemnification is sought, shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, ; however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders orShareholder Representative, or if applicable, such the Shareholder, shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a12.1 (a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a12.1 (a) and from the Pro Rata Portion (as defined below) of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b). Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the ShareholdersShareholder Representative, or, if applicable, the Shareholder, which consent shall not be unreasonably withheld. In the event that the ShareholdersShareholder Representative, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromise.
(c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to the right of the Shareholders to dispute the Parent’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of this Article XII).
Appears in 1 contract
Sources: Merger Agreement (Marchex Inc)
Notification of Claims. (a) Subject to the provisions of Section 12.3 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1asserts constitutes an Indemnity Claim, the Parent shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, Equityholders with prompt written notice (a “Claim Notice”) of such event and shall otherwise promptly make available to the Shareholders, and if applicable such Shareholder, Equityholders all relevant information which is material to the claim and which is in the possession of the indemnified party. If such event involves the claim of any third party (a "Third-Party Claim"), the Equityholders as the indemnifying parties shall have the right to elect to join in the defense, settlement, adjustment or compromise of any such Third-Party Claim, and, if they so elect to control such defense, settlement, adjustment or compromise, and to employ counsel to assist such indemnifying parties in connection with the handling of such claim, at the sole expense of the indemnifying parties, in the case of the Equityholders as the indemnifying parties, to be paid from amounts held in escrow by the Escrow Agent in accordance with the terms of the Escrow Agreement. Unless the Equityholder elect to assume such defense, settlement, adjustment or compromise, Parent shall have the right to settle any such Third-Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third-Party Claim without the written consent of the Equityholders, which consent shall not be unreasonably withheld. In the event that the Equityholders have consented in writing to any such settlement, adjustment or compromise, the Equityholders shall have no power or authority to object to the amount of any claim by Parent against the escrow for indemnity with respect to such settlement, adjustment or compromise. The Equityholders shall have the right to settle, adjust, or compromise any ThirdParty Claim, the defense of which is controlled by the Equityholders, using amounts held in escrow; provided, however, that, unless the settlement, adjustment or compromise involves no more than the payment of an amount that is less than the amount of funds then remaining in the escrow and provides for the unconditional release of Parent’s , the Company and their respective affiliates, the Equityholders may not effect the settlement, adjustment, compromise or satisfaction of any such Third-Party Claim without the consent of the Parent, which consent shall not be unreasonably withheld. Parent's failure to give a timely Claims Notice notice or to promptly furnish the Shareholders, and if applicable such Shareholder, Representative with any relevant data and documents in connection with any Third-Party Claim shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnifying party. In connection with any Third-Party Claim, the indemnified party.
(b) The Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, shall have the right to elect to join in, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”) for which indemnification will be sought by the Parent; provided, however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders or, if applicable, such Shareholder, shall be borne by the Shareholders with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b); provided, such expenses shall be paid from the Escrow Deposit for indemnification sought pursuant to Section 12.1(a) and from the Pro Rata Portion of the Escrow Deposit attributable to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b). Parent shall have the right to settle any such Third Party Claim; provided, however, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, or, if applicable, the Shareholder, which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, has consented in writing to any such settlement, adjustment or compromise, the Shareholders shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit for indemnification of Losses with respect to such settlement, adjustment or compromise.
(c) Notwithstanding the other provisions of this Section 12.2, if a third party asserts (other than by means of a lawsuit) that Parent or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to the right of the Shareholders to dispute the Parent’s entitlement to indemnification, or the amount for which indemnifying party if it is entitled has assumed the defense of such claim pursuant to indemnificationthe preceding sentence, under shall diligently pursue the terms defense of this Article XII)such Third-Party Claim.
Appears in 1 contract
Sources: Merger Agreement (Go2net Inc)
Notification of Claims. (a) Subject to the provisions of Section 12.3 below, in the event of the occurrence of an event pursuant to which the Parent shall seek indemnity pursuant to Section 12.1, the Parent shall provide the Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, with prompt written notice (a “"Claim Notice”") of such event and shall otherwise promptly make available to the Shareholders, and if applicable such Shareholder, all relevant information which is material to the claim and which is in the possession of the indemnified party. Parent’s 's failure to give a timely Claims Notice or to promptly furnish the Shareholders, and if applicable such Shareholder, Shareholder with any relevant data and documents in connection with any Third-Party Claim (as that term is hereinafter defined) shall not constitute a defense (in part or in whole) to any claim for indemnification by such party, except and only to the extent that such failure shall result in any prejudice to the indemnified party.
(b) The Shareholders and, if such indemnity is sought against a Shareholder pursuant to Section 12.1(b), the Shareholder against whom indemnification is sought, shall have the right to elect to join in, and in such event to conduct and control, through counsel of its choosing reasonably acceptable to Parent, the defense, settlement, adjustment or compromise of any claim of any third party (a “Third Party Claim”"THIRD PARTY CLAIM") for which indemnification will be sought by the Parent; provided, however, that Parent shall control such defense, settlement, adjustment or compromise. The expense of any such defense, settlement, adjustment or compromise, including Parent’s counsel and any counsel chosen by the Shareholders or, if applicable, such Shareholdercounsel, shall be borne by the Shareholders Shareholder with respect to indemnification sought pursuant to Section 12.1(a) and by the Shareholders against whom indemnification is sought with respect to indemnification sought pursuant to Section 12.1(b)12.1; provided, provided such expenses shall be paid from the Escrow Deposit amounts held in escrow for indemnification sought pursuant to Section 12.1(a) and from 12.1. Unless the Pro Rata Portion of the Escrow Deposit attributable Shareholder elects to the Shareholders against whom indemnification is sought pursuant to Section 12.1(b). assume such defense, settlement, adjustment or compromise, Parent shall have the right to settle any such Third Party Claim; providedPROVIDED, howeverHOWEVER, that Parent may not effect the settlement, adjustment or compromise of any such Third Party Claim without the written consent of the Shareholders, or, if applicable, the Shareholder, Shareholder which consent shall not be unreasonably withheld. In the event that the Shareholders, or, if applicable, the Shareholder, Shareholder has consented in writing to any such settlement, adjustment or compromise, the Shareholders Shareholder shall have no power or authority to object to the amount of any claim by Parent against the Escrow Deposit escrow for indemnification of Losses indemnity with respect to such settlement, adjustment or compromise.
(c) Notwithstanding . The Shareholder shall have the other provisions right to settle, adjust, or compromise any Third Party Claim, the defense of this Section 12.2which is controlled by the Shareholder using amounts held in escrow; PROVIDED, if a third party asserts (other HOWEVER, that, unless the settlement, adjustment or compromise involves no more than by means the payment of a lawsuit) an amount that Parent is less than the amount of funds then remaining in the escrow and provides for the unconditional release of Parent, the Company and their respective affiliates, the Shareholder may not effect the settlement, adjustment, compromise or Surviving Corporation is liable to such third party for a monetary or other obligation for which Parent expects to seek indemnification pursuant to this Article XII, and Parent reasonably determines that it has a valid business reason to fulfill such obligation, then (i) Parent shall be entitled to satisfy such obligation, without prior notice to or consent from the Shareholders, (ii) Parent may subsequently make a claim for indemnification in accordance with the provisions satisfaction of this Article XII, and (iii) Parent shall be reimbursed, in accordance with the provisions of this Article XII, for any such Losses for which it is entitled to indemnification pursuant to this Article XII (subject to Third Party Claim without the right written consent of the Shareholders to dispute Parent, which consent shall not be unreasonably withheld. In connection with any Third Party Claim, the Parent’s entitlement to indemnificationindemnified party, or the amount for which indemnifying party if it is entitled has assumed the defense of such claim pursuant to indemnificationthe foregoing, under shall diligently pursue the terms defense of this Article XII)such Third Party Claim.
Appears in 1 contract