Resolution of Objections to Claims. (a) If the Agent accepts, by written notice to Parent, or does not contest any claim or claims by Parent made in any Claim Certificate within the 20-Business Day period following receipt of the Claim Certificate, then (i) the entire amount set forth on such Claim Certificate will become payable by the Equityholders to the Indemnified Persons and (ii) to the extent such liability can be satisfied in whole or in part from the Escrow Fund, Parent and Agent will cause the Escrow Agent to distribute to Parent an amount in cash and a number of Parent Shares from the Escrow Fund having a total value equal to the amount of any Indemnifiable Damages corresponding to such claim or claims as set forth in such Claim Certificate (with each Parent Share valued at the Parent Stock Price). (b) If the Agent objects in writing to any claim or claims by Parent made in any Claim Certificate within the 20-Business Day period set forth in Section 8.6(a), Parent and the Agent will attempt in good faith for 45 days after Parent’s receipt of such written objection to resolve such objection. If Parent and the Agent so agree, (i) such agreed amount will become payable by the Equityholders to the Indemnified Persons and (ii) to the extent such liability can be satisfied in whole or in part from the Escrow Fund, Parent and Agent will jointly instruct the Escrow Agent to distribute to Parent an amount of cash and a number of Parent Shares from the Escrow Fund to satisfy all or part of such liability (with each Parent Share valued at the Parent Stock Price). (c) If no such agreement can be reached during the 45-day period for good faith negotiation set forth in Section 8.6(b), but in any event upon the expiration of such 45-day period, either Parent or the Agent may pursue a claim subject to the limitations set forth in Section 9.6 to obtain a final, non-appealable decision of a court resolving such disputed claim (a “Final Order”). To the extent such liability can be satisfied in whole or in part from the Escrow Fund, Agent (on behalf of the Equityholders) and Parent will each be entitled to instruct the Escrow Agent to distribute the Escrow Fund in accordance with the Final Order. (d) For purposes of this Section 8.6(d), in any suit hereunder in which any claim or the amount thereof stated in the Claim Certificate is at issue, Parent will be deemed to be the prevailing party unless the court determines in favor of the Agent (on behalf of the Equityholders) with respect to more than one-half of the amount in dispute, in which case the Equityholders will be deemed to be the prevailing party. The non-prevailing party will pay its own fees and expenses and the fees and expenses of the prevailing party, including attorneys’ fees and costs, reasonably incurred in connection with such suit. (e) Notwithstanding anything to the contrary in the foregoing, should the amount held in the Escrow Fund, if any, be insufficient to satisfy in whole the amount of Indemnifiable Damages that become payable by the Equityholders to the Indemnified Persons pursuant to this Agreement, then each Equityholder shall, as promptly as practicable following the date such amount becomes payable pursuant to this Article 8, pay to the Indemnified Person its Pro Rata Share of such shortfall. Any such shortfall shall be satisfied in either cash or by the forfeiture of Parent Shares (valued based on the average closing price of one Parent Share on the NYSE for the period of five consecutive trading days ending on (and including) the third trading day immediately prior to the date such shortfall is to be paid in accordance with the foregoing sentence).
Appears in 1 contract
Resolution of Objections to Claims. (a) If the Effective Time Holders’ Agent acceptsdoes not contest, by written notice to ParentAcquirer, or does not contest any claim or claims by Parent Acquirer made in any Claim Certificate within twenty (20) Business Days after any such Claim Certificate is received by the 20-Business Day period following receipt Effective Time Holders’ Agent, then the Effective Time Holders’ Agent will be conclusively deemed to have consented, on behalf of all Effective Time Holders, to the recovery by the Indemnified Person of the full amount of Indemnifiable Damages specified in the Claim Certificate, then (i) including the entire forfeiture of such amount set forth on such Claim Certificate will become payable by the Equityholders to the Indemnified Persons and (ii) to the extent such liability can be satisfied in whole or in part from the Escrow Fund, Parent and Agent will cause the Escrow Agent to distribute to Parent an amount in cash and a number of Parent Shares from the Escrow Fund having a total value equal Funds (subject to the amount of any Indemnifiable Damages corresponding to such claim or claims as terms and conditions set forth in Section 8.3 above) having a value sufficient to satisfy such Claim Certificate (with each Parent Share valued at Indemnifiable Damages and, without further notice, to have stipulated to the Parent Stock Price)entry of a final judgment for Indemnifiable Damages against the Effective Time Holders for such amount in any court having jurisdiction over the matter where venue is proper.
(b) If the Effective Time Holders’ Agent objects in writing to any claim or claims by Parent Acquirer made in any Claim Certificate within the such twenty (20-) Business Day period set forth in Section 8.6(a)period, Parent Acquirer and the Effective Time Holders’ Agent will shall attempt in good faith for 45 days thirty (30) Business Days after ParentAcquirer’s receipt of such written objection to resolve such objection. If Parent Acquirer and the Effective Time Holders’ Agent shall so agree, (i) a memorandum setting forth such agreed agreement shall be prepared and signed by both parties. The Escrow Agent shall be entitled to conclusively rely on any such memorandum and the Escrow Agent shall distribute such amount will become payable by the Equityholders to the Indemnified Persons and (ii) to the extent such liability can be satisfied in whole or in part from the Escrow Fund, Parent and Agent will jointly instruct Funds in accordance with the Escrow Agent to distribute to Parent an amount of cash and a number of Parent Shares from the Escrow Fund to satisfy all or part terms of such liability (with each Parent Share valued at the Parent Stock Price)memorandum.
(c) If no such agreement can be reached during the 45-day thirty (30) Business Day period for good faith negotiation set forth in Section 8.6(b)negotiation, but in any event upon the expiration of such 45-day thirty (30) Business Day period, either Parent Acquirer or the Effective Time Holders’ Agent may pursue a claim subject to proceed in accordance with the limitations terms set forth in Section 9.6 9.9 of this Agreement to obtain a final, non-appealable resolve the matter. The decision of a court resolving the J.A.M.S. arbitrator as to the validity and amount of any claim in such disputed claim (a “Final Order”). To Claim Certificate shall be nonappealable, binding and conclusive upon the extent parties to this Agreement and the Escrow Agent shall be entitled to conclusively rely and to act in accordance with such liability can be satisfied in whole or in part decision and the Escrow Agent shall distribute such amount from the Escrow Fund, Agent (on behalf of the Equityholders) and Parent will each be entitled to instruct the Escrow Agent to distribute the Escrow Fund Funds in accordance with the Final Ordertherewith.
(d) Judgment upon any award rendered by the trial court may be entered in any court having jurisdiction. For purposes of this Section 8.6(d), in any suit hereunder in which any claim or the amount thereof stated in the Claim Certificate is at issue, Parent will Acquirer shall be deemed to be the non-prevailing party unless the trial court determines in favor of the Agent (on behalf of the Equityholders) with respect to awards Acquirer more than one-half of the amount in dispute, in which case the Equityholders will Effective Time Holders shall be deemed to be the non-prevailing party. The non-prevailing party will to a suit shall pay its own fees expenses and the expenses and the fees and expenses of the prevailing party, including attorneys’ fees and costs, reasonably incurred in connection with such suit.
(e) Notwithstanding anything to the contrary in the foregoing, should the amount held in the Escrow Fund, if any, be insufficient to satisfy in whole the amount of Indemnifiable Damages that become payable by the Equityholders to the Indemnified Persons pursuant to this Agreement, then each Equityholder shall, as promptly as practicable following the date such amount becomes payable pursuant to this Article 8, pay to the Indemnified Person its Pro Rata Share of such shortfall. Any such shortfall shall be satisfied in either cash or by the forfeiture of Parent Shares (valued based on the average closing price of one Parent Share on the NYSE for the period of five consecutive trading days ending on (and including) the third trading day immediately prior to the date such shortfall is to be paid in accordance with the foregoing sentence).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (ShoreTel Inc)
Resolution of Objections to Claims. (a) If the Agent accepts, by written notice to Parent, or does not contest any claim or claims by Parent made in any Claim Certificate within the 20-Business Day period following receipt of the Claim Certificate, then (i) the entire amount set forth on such Claim Certificate will become payable by the Equityholders to the Indemnified Persons and (ii) to the extent such liability can be satisfied in whole or in part from the Escrow Fund, Parent and Agent will cause the Escrow Agent to distribute to Parent an amount in cash and a number of Parent Shares from the Escrow Fund having a total value equal to the amount of any Indemnifiable Damages corresponding to such claim or claims as set forth in such Claim Certificate (with each Parent Share valued at the Parent Stock Price).
(b) If the Agent Representative objects in writing to any claim or claims by Parent Liability Claim made in any Claim Certificate Claims Notice within thirty (30) days after delivery of such Claims Notice, the 20-Business Day period set forth in Section 8.6(a), Representative and Parent and the Agent will attempt in good faith for 45 days after Parent’s receipt to agree upon the rights of the respective parties with respect to each such written objection to resolve such objectionclaim. If the Representative and Parent and the Agent should so agree, a memorandum setting forth such agreement will be prepared and signed by both parties and, except as set forth in the next sentence, within ten (i10) Business Days after receipt of written notice of Representative and Parent’s entry into such memorandum, each Indemnifying Securityholder will wire transfer to Parent immediately available funds equal to its Pro Rata Portion of the amount of cash agreed amount will become payable by to be delivered to Parent in the Equityholders to the Indemnified Persons and (ii) to memorandum. To the extent such liability can be satisfied in whole or in part from that a Liability Claim was made against the Escrow Fund, Parent and a copy of the memorandum setting forth the agreement will be delivered to the Escrow Agent. The Escrow Agent will jointly instruct the Escrow Agent be entitled to rely on any such memorandum and will distribute to Parent an amount of cash and a number of Parent Shares as soon as practicable from the Escrow Fund to satisfy all or part of such liability (in accordance with each Parent Share valued at the Parent Stock Price)terms thereof.
(cb) If no such agreement can be reached during the 45after good-day period for good faith negotiation set forth in Section 8.6(b), but in any event upon the expiration and after thirty (30) days after delivery of such 45-day periodan Objection Notice, either Parent or the Agent Representative on behalf of the Indemnifying Securityholders may pursue a claim subject bring an action against the other to resolve the limitations set forth in Section 9.6 to obtain a final, non-appealable decision of a court resolving such disputed claim (a “Final Order”)dispute. To the extent that an Indemnified Person is permitted under this Article 7, and so elects, to seek recovery directly against one or more Indemnifying Securityholders, then each such liability can be satisfied Indemnifying Securityholder will promptly, and in whole or in part from no event later than ten (10) Business Days after the Escrow Fund, Agent (on behalf final resolution of the Equityholders) and Parent will each be entitled to instruct the Escrow Agent to distribute the Escrow Fund any dispute in accordance with the Final Order.
(d) For purposes of this Section 8.6(d)Section 7.7, in any suit hereunder in which any claim or the amount thereof stated in the Claim Certificate is at issue, wire transfer to Parent will be deemed immediately available funds equal to be the prevailing party unless the court determines in favor of the Agent (on behalf of the Equityholders) with respect to more than one-half its Pro Rata Portion of the amount of Losses determined in dispute, in which case the Equityholders will be deemed to be the prevailing partyaccordance with this Section 7.7. The non-prevailing party will pay its own fees and expenses and the fees and expenses of the prevailing party, including attorneys’ fees and costs, reasonably incurred in connection with such suit.
(e) Notwithstanding anything to the contrary in the foregoing, should the amount held in the Escrow Fund, if any, be insufficient to satisfy in whole If the amount of Indemnifiable Damages that become payable by the Equityholders to the Indemnified Persons pursuant to this AgreementLosses so determined is an estimate, then each Equityholder shall, as promptly as practicable following the applicable Indemnifying Securityholder will be required to make such payment within ten (10) Business Days of the date such that the amount becomes payable pursuant to this Article 8, pay to the Indemnified Person its Pro Rata Share of such shortfall. Any such shortfall shall be satisfied in either cash or by the forfeiture of Parent Shares (valued based on the average closing price of one Parent Share on the NYSE for the period of five consecutive trading days ending on (and including) the third trading day immediately prior to the date such shortfall Losses is to be paid in accordance with the foregoing sentence)finally determined.
Appears in 1 contract
Resolution of Objections to Claims. (a) If the Stockholders’ Agent acceptsdoes not contest, by written notice to ParentCastlight and the Escrow Agent, or does not contest any claim or claims by Parent Castlight made in any Claim Certificate within the 2030-Business Day day period following receipt of the Claim Certificate, then (i) the entire amount set forth on such Claim Certificate will become payable by the Equityholders to the Indemnified Persons and (ii) to the extent such liability can be satisfied in whole or in part from the Escrow Fund, Parent and Agent will cause the Escrow Agent to distribute to Parent an amount in cash and Castlight may cancel a number of Parent Shares shares of Castlight Class B Common Stock from the Escrow Fund or the Earnout having a total value equal to the amount of any the Indemnifiable Damages corresponding to such claim or claims as set forth in such Claim Certificate; provided that the per share value of any shares of Castlight Class B Common Stock cancelled to satisfy any claims in a Claim Certificate (with each Parent Share valued at under this Article IX shall be the Parent Castlight Stock Price).
(b) If the Stockholders’ Agent objects in writing to any claim or claims by Parent Castlight made in any Claim Certificate within the 2030-Business Day day period set forth in Section 8.6(a9.6(a), Parent Castlight and the Stockholders’ Agent will shall attempt in good faith for 45 60 days after ParentCastlight’s receipt of such written objection to resolve such objection. If Parent Castlight and the Stockholders’ Agent shall so agree, (i) a memorandum setting forth such agreed amount will become payable agreement shall be prepared and signed by both Castlight and the Equityholders to the Indemnified Persons and (ii) Stockholders’ Agent and, to the extent such liability can be satisfied in whole or in part from memorandum is executed prior to the Escrow FundRelease Date, Parent and Agent will jointly instruct delivered to the Escrow Agent. The Escrow Agent and Castlight, as applicable, shall be entitled to distribute to Parent an amount of cash conclusively rely on any such memorandum and Castlight may cancel a number of Parent Shares shares of Castlight Class B Common Stock from the Escrow Fund or Earnout in accordance with the terms of such memorandum; provided that the per share value of any shares of Castlight Class B Common Stock cancelled to satisfy all or part of such liability (with each Parent Share valued at any claims pursuant to this Section 9.6(b) shall be the Parent Castlight Stock Price).
(c) If no such agreement can be reached during the 4560-day period for good faith negotiation set forth in Section 8.6(b9.6(b), but in any event upon the expiration of such 4560-day period, either Parent Castlight or the Stockholders’ Agent may pursue a claim subject to the limitations set forth in Section 9.6 to obtain a final, non-appealable decision of a court resolving such disputed claim (a “Final Order”). To the extent such liability can be satisfied in whole or in part from the Escrow Fund, Agent (on behalf of the Equityholders) and Parent will each be entitled to instruct the Escrow Agent to distribute the Escrow Fund bring an action in accordance with the Final Orderterms of Section 10.11 to resolve the matter. The decision of an applicable court as to the validity and amount of any claim in such Claim Certificate and the amount, if determined, that constitutes Indemnifiable Damages under this Article IX for which recovery may be made shall be non-appealable, binding and conclusive upon the parties hereto and the Converting Holders, the Escrow Agent and Castlight, as applicable, shall be entitled to act in accordance with such decision and (i) if the Converting Holders are the indemnifying parties, Castlight may cancel a number of shares of Castlight Class B Common Stock in, the Escrow Fund or Earnout in accordance therewith; provided that the per share value of any shares of Castlight Class B Common Stock cancelled to satisfy any claims pursuant to this Section 9.6(c) shall be the Castlight Stock Price or (ii) if Castlight is the indemnifying party, Castlight shall issue, or cause to be issued, to the Converting Holders and holders of Jiff Options (based on their Pro Rata Share), reasonably promptly following such decision, a number of shares of Castlight Class B Common Stock in accordance therewith; provided that the per share value of any shares of Castlight Class B Common Stock issued to satisfy any claims pursuant to this Section 9.6(c) shall be the Castlight Stock Price.
(d) For purposes of this Section 8.6(d9.6(d), in any suit hereunder in which any claim or the amount thereof stated in the Claim Certificate is at issue, Parent will Castlight shall be deemed to be the prevailing party unless the applicable court determines in favor of the Stockholders’ Agent (on behalf of the EquityholdersConverting Holders) with respect to more than one-half of the amount in dispute, in which case the Equityholders will Converting Holders shall be deemed to be the prevailing party. The non-prevailing party will shall pay its own fees and expenses and the fees and expenses of the prevailing party, including attorneys’ fees and costs, reasonably incurred in connection with such suit.
(e) Notwithstanding anything Any portion of the Escrow Fund and/or Earnout held following the Escrow Release Date or the payment date of the Earnout, as applicable, with respect to pending but unresolved claims for indemnification that is not awarded to Castlight upon the resolution of such claims shall be distributed by the Escrow Agent to the contrary Converting Holders within five Business Days following resolution of such claims and in the foregoing, should the amount held in the Escrow Fund, if any, be insufficient to satisfy in whole the amount of Indemnifiable Damages that become payable by the Equityholders to the Indemnified Persons pursuant to this Agreement, then accordance with each Equityholder shall, as promptly as practicable following the date such amount becomes payable pursuant to this Article 8, pay to the Indemnified Person its Converting Holder’s Pro Rata Share of such shortfall. Any such shortfall shall be satisfied in either cash portion of the Escrow Fund or by Earnout Pro Rata Share of the forfeiture of Parent Shares (valued based on the average closing price of one Parent Share on the NYSE for the period of five consecutive trading days ending on (and including) the third trading day immediately prior to the date such shortfall is to be paid in accordance with the foregoing sentence)Earnout.
Appears in 1 contract
Resolution of Objections to Claims. (a) If 9.7.1 In the Agent accepts, by written notice to Parent, or does not contest any claim or claims by Parent made in any Claim Certificate within event the 20-Business Day period following receipt of the Claim Certificate, then (i) the entire amount set forth on such Claim Certificate will become payable by the Equityholders to the Indemnified Persons and (ii) to the extent such liability can be satisfied in whole or in part from the Escrow Fund, Parent and Agent will cause the Escrow Agent to distribute to Parent an amount in cash and a number of Parent Shares from the Escrow Fund having a total value equal to the amount of any Indemnifiable Damages corresponding to such claim or claims as set forth in such Claim Certificate (with each Parent Share valued at the Parent Stock Price).
(b) If the Agent objects Bridge Lender Representative shall so object in writing to any claim or claims by Parent any Indemnified Party made in any Claim Certificate within the 20-Business Day period set forth in Section 8.6(a)Officer’s Certificate, Parent shall have 45 days after its receipt of such writing to respond in a written statement to the objection of the Bridge Lender Representative. If after such 45-day period there remains a dispute as to any claims, the Bridge Lender Representative and the Agent will Parent shall attempt in good faith for 45 60 days after Parent’s receipt thereafter to agree upon the rights of the respective parties with respect to each of such written objection to resolve such objectionclaims. If the Bridge Lender Representative and Parent and the Agent shall so agree, (i) a memorandum setting forth such agreed amount will become payable agreement shall be prepared and signed by the Equityholders both parties and shall be furnished to the Indemnified Persons and (ii) to the extent such liability can be satisfied in whole or in part from the Escrow Fund, Parent and Agent will jointly instruct the Agent. The Escrow Agent shall be entitled to rely on any such memorandum and shall distribute to Parent an amount of cash and a number of Parent Shares the shares or other property from the Escrow Fund to satisfy all or part of such liability (in accordance with each Parent Share valued at the Parent Stock Price)terms thereof.
(c) 9.7.2 If no such agreement can be reached during the 45-day period for after good faith negotiation set forth in Section 8.6(b), but in any event upon the expiration of such 45-day periodnegotiation, either Parent or the Agent may pursue a claim subject Bridge Lender Representative may, by written notice to the limitations set forth other, demand arbitration of the dispute unless the amount of the damage or loss is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and in either such event the matter shall be settled by arbitration conducted by three arbitrators. Within 15 days after such written notice is sent, each of Parent and the Bridge Lender Representative shall select one arbitrator, and the two arbitrators so selected shall select a third arbitrator within ten days of their selection. The decision of the arbitrators as to the validity and amount of any claim in such Officer’s Certificate shall be binding and conclusive upon the Bridge Lenders and the Incentive Plan Participants and, notwithstanding anything in Section 9.6 to obtain a final9.6, non-appealable decision of a court resolving such disputed claim (a “Final Order”). To the extent such liability can be satisfied in whole or in part from the Escrow Fund, Agent (on behalf of the Equityholders) and Parent will each shall be entitled to instruct the Escrow Agent to distribute act in accordance with such decision and make or withhold payments out of the Escrow Fund in accordance with the Final Ordertherewith.
(d) 9.7.3 Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction. Any such arbitration shall be held in Santa ▇▇▇▇▇ County or San Mateo County, California under the commercial rules then in effect of the American Arbitration Association. For purposes of this Section 8.6(d)9.7.3, in any suit arbitration hereunder in which any claim or the amount thereof stated in the Claim Officer’s Certificate is at issue, Parent will shall be deemed to be the prevailing party Non-Prevailing Party unless the court determines in favor of the Agent (on behalf of the Equityholders) with respect to arbitrators award Parent more than one-half of the amount in dispute; otherwise, in which case the Equityholders will Bridge Lenders and Incentive Plan Participants shall be deemed to be the prevailing partyNon-Prevailing Party. The nonNon-prevailing party will Prevailing Party to an arbitration shall pay its own expenses, the fees and expenses of each arbitrator, the administrative fee of the American Arbitration Association, and the fees and expenses of the prevailing partyexpenses, including attorneys’ fees and costs, reasonably incurred in connection with such suit.
(e) Notwithstanding anything by the other party to the contrary in arbitration. If the foregoingBridge Lenders and Incentive Plan Participants are deemed to be the Non-Prevailing Party, should such fees and expenses shall be paid by the amount held Bridge Lenders and Incentive Plan Participants solely by distributing to Parent Escrow Shares or other property out of the Escrow Fund therefor and only to the extent there remain any such Escrow Shares or other property in the Escrow Fund, if any, be insufficient to satisfy in whole the amount of Indemnifiable Damages that become payable by the Equityholders to the Indemnified Persons pursuant to this Agreement, then each Equityholder shall, as promptly as practicable following the date such amount becomes payable pursuant to this Article 8, pay to the Indemnified Person its Pro Rata Share of such shortfall. Any such shortfall shall be satisfied in either cash or by the forfeiture of Parent Shares (valued based on the average closing price of one Parent Share on the NYSE for the period of five consecutive trading days ending on (and including) the third trading day immediately prior to the date such shortfall is to be paid in accordance with the foregoing sentence).
Appears in 1 contract
Sources: Merger Agreement (Telanetix,Inc)
Resolution of Objections to Claims. (a) If the Shareholders’ Agent acceptsdoes not contest, by written notice to Parent, or does not contest any claim or claims by Parent made in any Claim Certificate within the 2030-Business Day day period following receipt of the Claim Certificate, then (i) the entire Parent shall reclaim an amount set forth on such Claim Certificate will become payable by the Equityholders to the Indemnified Persons and (ii) to the extent such liability can be satisfied in whole or in part of cash from the Escrow Fund, Parent and Agent will cause the Escrow Agent to distribute to Parent an amount in cash and a number of Parent Shares from the Indemnity Escrow Fund having a total value equal to the amount of any Indemnifiable Damages corresponding to such claim or claims as set forth in such Claim Certificate (with each Parent Share valued at the Parent Stock Price)Certificate.
(b) If the Agent Shareholders’ Agent, objects in writing to any claim or claims by Parent made in any Claim Certificate within the 2030-Business Day day period set forth in Section 8.6(a9.6(a), Parent and the Agent will Shareholders’ Agent, shall attempt in good faith for 45 60 days after the date of Parent’s receipt of such written objection to resolve such objection. If Parent and the Agent Shareholders’ Agent, shall so agree, (i) a memorandum setting forth such agreed amount will become payable agreement shall be prepared and signed by the Equityholders to the Indemnified Persons and (ii) to the extent such liability can be satisfied in whole or in part from the Escrow Fund, both Parent and Agent will jointly instruct the Escrow Agent Shareholders’ Agent. Parent shall be entitled to distribute to conclusively rely on any such memorandum and Parent shall reclaim an amount of cash and a number of Parent Shares from the Indemnity Escrow Fund to satisfy all or part in accordance with the terms of such liability (with each Parent Share valued at the Parent Stock Price)memorandum.
(c) If no such agreement can be reached during the 4560-day period for good faith negotiation set forth in Section 8.6(b9.7(b), but in any event upon the expiration of such 4560-day period, either Parent or the Shareholders’ Agent may pursue initiate a claim subject to the limitations set forth in Section 9.6 to obtain a final, non-appealable decision of a court resolving such disputed claim (a “Final Order”). To the extent such liability can be satisfied in whole or in part from the Escrow Fund, Agent (on behalf of the Equityholders) and Parent will each be entitled to instruct the Escrow Agent to distribute the Escrow Fund dispute in accordance with the Final Orderterms of Section 10.12 to resolve the matter.
(d) For purposes of this Section 8.6(d), in any suit hereunder in which any claim or the amount thereof stated in the Claim Certificate is at issue, Parent will be deemed to be the prevailing party unless the court determines in favor Any portion of the Agent (on behalf of Indemnity Escrow Fund held following the Equityholders) Escrow Release Date with respect to more than one-half of pending but unresolved claims for indemnification that is not awarded to Parent upon the amount in dispute, in which case relevant claim being Finally Determined shall be released by the Equityholders will be deemed to be the prevailing party. The non-prevailing party will pay its own fees and expenses and the fees and expenses of the prevailing party, including attorneys’ fees and costs, reasonably incurred in connection with such suit.
(e) Notwithstanding anything Escrow Agent for distribution to the contrary in the foregoingCompany Shareholders, should the amount held in the Escrow Fund, if any, be insufficient to satisfy in whole the amount of Indemnifiable Damages that become payable by the Equityholders to the Indemnified Persons pursuant to this Agreement, then each Equityholder shall, as promptly as practicable within five Business Days following the date any such amount becomes payable pursuant to this Article 8, pay to the Indemnified Person its Pro Rata Share of such shortfall. Any such shortfall shall be satisfied in either cash or by the forfeiture of Parent Shares (valued based on the average closing price of one Parent Share on the NYSE for the period of five consecutive trading days ending on (and including) the third trading day immediately prior to the date such shortfall is to be paid in accordance with the foregoing sentence)claim being Finally Determined.
Appears in 1 contract
Resolution of Objections to Claims. (a) If the Agent accepts, by written notice to Parent, or does not contest any claim or claims by Parent made in any Claim Certificate within the 20-Business Day period following receipt of the Claim Certificate, then (i) the entire amount set forth on such Claim Certificate will become payable by the Equityholders to the Indemnified Persons and (ii) to the extent such liability can be satisfied in whole or in part from the Escrow Fund, Parent and Agent will cause the Escrow Agent to distribute to Parent an amount in cash and a number of Parent Shares from the Escrow Fund having a total value equal to the amount of any Indemnifiable Damages corresponding to such claim or claims as set forth in such Claim Certificate (with each Parent Share valued at the Parent Stock Price)Certificate.
(b) If the Agent objects in writing to any claim or claims by Parent made in any Claim Certificate within the 20-Business Day period set forth in Section 8.6(a), Parent and the Agent will attempt in good faith for 45 days after Parent’s receipt of such written objection to resolve such objection. If Parent and the Agent so agree, (i) such agreed amount will become payable by the Equityholders to the Indemnified Persons and (ii) to the extent such liability can be satisfied in whole or in part from the Escrow Fund, Parent and Agent will jointly instruct the Escrow Agent to distribute to Parent an amount of cash and a number of Parent Shares from the Escrow Fund to satisfy all or part of such liability (with each Parent Share valued at the Parent Stock Price)liability.
(c) If no such agreement can be reached during the 45-day period for good faith negotiation set forth in Section 8.6(b), but in any event upon the expiration of such 45-day period, either Parent or the Agent may pursue a claim subject to the limitations set forth in Section 9.6 to obtain a final, non-appealable decision of a court resolving such disputed claim (a “Final Order”). To the extent such liability can be satisfied in whole or in part from the Escrow Fund, Agent (on behalf of the Equityholders) and Parent will each be entitled to instruct the Escrow Agent to distribute the Escrow Fund in accordance with the Final Order.
(d) For purposes of this Section 8.6(d), in any suit hereunder in which any claim or the amount thereof stated in the Claim Certificate is at issue, Parent will be deemed to be the prevailing party unless the court determines in favor of the Agent (on behalf of the Equityholders) with respect to more than one-half of the amount in dispute, in which case the Equityholders will be deemed to be the prevailing party. The non-prevailing party will pay its own fees and expenses and the fees and expenses of the prevailing party, including attorneys’ fees and costs, reasonably incurred in connection with such suit.
(e) Notwithstanding anything to the contrary in the foregoing, should the amount held in the Escrow Fund, if any, be insufficient to satisfy in whole the amount of Indemnifiable Damages that become payable by the Equityholders to the Indemnified Persons pursuant to this Agreement, then each Equityholder shall, as promptly as practicable following the date such amount becomes payable pursuant to this Article 8, pay to the Indemnified Person its Pro Rata Share of such shortfall. Any such shortfall shall be satisfied promptly in either cash or by the forfeiture of Parent Shares (valued based on the average closing price of one Parent Share on the NYSE for the period of five consecutive trading days ending on (and including) the third trading day immediately prior to the date such shortfall is to be paid in accordance with the foregoing sentence); provided that if an Equityholder fails to pay its Pro Rata Share of the shortfall within 10 Business Days of such amount becoming payable pursuant to this Article 8, Parent shall be entitled to, upon prior notice to Equityholder, cancel a number of Parent Shares held by such Equityholder (if any) in satisfaction thereof.
Appears in 1 contract