Common use of Holdback Amount Clause in Contracts

Holdback Amount. Any payment that the Shareholders are obligated to make to any Buyer Indemnitees pursuant to this Article IX shall, first, to the extent that the Holdback Amount is greater than the indemnity payment, be paid to the Buyer Indemnitiees by an offset of such amount against the Holdback Amount otherwise due to the Shareholders and accordingly will reduce the Holdback Amount and, secondly, to the extent that any additional sums are due after the offset against the Holdback Amount, the Shaerholders (as Indemnifying Party) shall pay all of such additional sums to the Buyer Indemnitees by wire transfer of immediately available funds within five (5) business days after demand by the Buyer Indemnitees. On the Release Date, Buyer shall pay the remaining Holdback Amount (to the extent not offset for indemnity payments due from any of the Shareholders) to the Shareholders by wire transfer of immediately available funds; provided, however, Buyer shall retain an amount equal to the amount of claims for indemnification under this Article IX asserted prior to the Release Date but not yet resolved (“Unresolved Claims”). Buyer will pay the portion of the Holdback Amount retained for Unresolved Claims to the Shareholders, to the extent the portion of the Holdback Amount is not utilized as payment for such claims resolved in favor of any Buyer Indemnitee, upon their resolution in accordance with this Article IX.

Holdback Amount. Any payment that The Purchaser shall withhold One Million Five Hundred Thousand Dollars ($1,500,000.00) of the Shareholders are obligated to make to any Buyer Indemnitees pursuant to this Article IX shall, first, to Purchase Price (the extent that the “Holdback Amount is greater than the indemnity payment, be paid to the Buyer Indemnitiees by an offset Amount”) for a period of such amount against the Holdback Amount otherwise due to the Shareholders and accordingly will reduce the Holdback Amount and, secondly, to the extent that any additional sums are due 120 days after the offset against Closing (the “Holdback Amount, the Shaerholders (as Indemnifying Party) shall pay all of such additional sums to the Buyer Indemnitees by wire transfer of immediately available funds within five (5) business days after demand by the Buyer Indemnitees. On the Release Payment Date, Buyer shall pay the remaining Holdback Amount (to the extent not offset for indemnity payments due from any of the Shareholders) to the Shareholders by wire transfer of immediately available funds”); provided, however, Buyer that any release of funds is subject to satisfaction of the terms and conditions set forth in ARTICLE XI. The Holdback Amount will serve as a fund to cover any shortfall in the Target Drawer Cash and/or the Minimum Inventory Amount(s), as insurance for payment of the Current Liabilities, and as a non-exclusive indemnification fund that will be used to satisfy any indemnification claim of any Purchaser Indemnitee pursuant to Section 9.2, in either case without limiting any other rights of Purchaser or any Purchaser Indemnitee under this Agreement. On the Holdback Payment Date, the Purchaser shall retain an amount equal pay to the Company by wire transfer to an account designated by the Representative the Holdback Amount, less any amount Purchaser may have applied from the Holdback Amount as was necessary to pay any Current Liabilities, and less any amounts then due to the Purchaser as of the Holdback Payment Date with respect to indemnification claims of any Purchaser Indemnitee under Section 9.2 or reserved for indemnification under this Article IX asserted payment with respect to any such claims submitted by any Purchaser Indemnitee on or prior to the Release Date but not yet resolved (“Unresolved Claims”)Holdback Payment Date, and less any other amounts then due to the Purchaser or any Purchaser Indemnitee hereunder. Buyer The Purchaser will pay provide Representative with access to all communications with third parties related to Current Liabilities as well as the portion work papers and other underlying records and documents used by the Purchaser in connection with the calculation of the Holdback Amount retained for Unresolved Claims to the Shareholders, to the extent the portion of the Holdback Amount is not utilized as payment for Target Drawer Cash and Minimum Inventory Value. The Purchaser shall cooperate fully and promptly in such claims resolved in favor of any Buyer Indemnitee, upon their resolution in accordance with this Article IXaccess and Representative review.

Holdback Amount. Any payment The parties hereto expressly acknowledge and agree that any and all payments required to be made by the Shareholders are obligated Series A Holders with respect to make to any Buyer Indemnitees their indemnification obligations pursuant to this Article IX shall, first, Section 2.2 shall be automatically reduced by an amount equal to the extent that aggregate amount of all Holdback Charges (as defined in the Holdback Amount is greater than Company’s 2015 Incentive Bonus Plan, adopted by the indemnity paymentCompany Board on March 20, be paid 2015 (the “2015 Incentive Bonus Plan”), and calculated in accordance with any award agreement thereunder (the “2015 Incentive Bonus Plan Award Agreements”)) for all current or former Participants (as defined in the 2015 Incentive Bonus Plan) with respect to the Buyer Indemnitiees by an offset of such amount against applicable claim for Losses (the “Aggregate Holdback Amount otherwise due Charge”) and the Surviving Corporation shall promptly pay to the Shareholders and accordingly will reduce applicable Parent Indemnified Party such Aggregate Holdback Charge (or retain such amount, if the Holdback Amount and, secondly, to Surviving Corporation is itself the extent that any additional sums are due after the offset against the Holdback Amount, the Shaerholders (as Indemnifying Parent Indemnified Party) shall pay all of such additional sums to the Buyer Indemnitees by wire transfer of immediately available funds within five (5) business days after demand by the Buyer Indemnitees. On the Release Date, Buyer shall pay the remaining Holdback Amount (to the extent not offset for indemnity payments due from any of the Shareholders) to the Shareholders by wire transfer of immediately available funds); provided, however, Buyer shall retain an that if the aggregate amount of the remaining Holdback Amounts (as defined in (and calculated in accordance with) the 2015 Incentive Bonus Plan, as modified in any 2015 Incentive Bonus Plan Award Agreement) for all current or former Participants (the “Aggregate Holdback Remaining Amount”) is less than that percentage of the Losses for any applicable claim pursuant to Section 2.2 equal to the amount sum of claims for indemnification all then-applicable Applicable Percentages (as defined in the 2015 Incentive Bonus Plan) under this Article IX asserted prior all of the 2015 Incentive Bonus Plan Award Agreements, the payment required to be made by the Series A Holders with respect to such applicable claim pursuant to Section 2.2 shall instead be reduced by the Aggregate Holdback Remaining Amount and the Surviving Corporation shall promptly pay to the Release Date but not yet resolved applicable Parent Indemnified Party the Aggregate Holdback Remaining Amount (“Unresolved Claims”or retain such amount, if the Surviving Corporation is itself the Parent Indemnified Party); provided, further, in no event shall a current or former Participant’s Holdback Amount be reduced below zero (0). Buyer will pay Upon the portion reduction of any payment required to be made by the Series A Holders with respect to their indemnification obligations pursuant to Section 2.2 by the Aggregate Holdback Remaining Amount, pursuant to the second preceding proviso, then the indemnification obligations of the Holdback Amount retained for Unresolved Claims Series A Holders pursuant to the Shareholders, to the extent the portion of the Holdback Amount is not utilized as payment for such claims resolved Section 2.2 shall no longer in favor of any Buyer Indemnitee, upon their resolution way be reduced in accordance with this Article IXSection 2.9.

Holdback Amount. Any payment No later than the third Business Day after the date that is (a) six months after the Shareholders are obligated to make to any Buyer Indemnitees pursuant to this Article IX shallClosing Date, first, the Purchaser shall pay to the extent that the Holdback Amount is greater than the indemnity payment, be paid to the Buyer Indemnitiees Seller by an offset of such amount against the Holdback Amount otherwise due to the Shareholders and accordingly will reduce the Holdback Amount and, secondly, to the extent that any additional sums are due after the offset against the Holdback Amount, the Shaerholders (as Indemnifying Party) shall pay all of such additional sums to the Buyer Indemnitees by bank or wire transfer of immediately available funds within five (5) business days after demand to the account designated in writing by the Buyer Indemnitees. On Seller at least one Business Day prior to such date, an amount in cash equal to the Release Date, Buyer shall pay the then remaining Holdback Amount less $1,000,000 less the aggregate amount of all unresolved claims for indemnification brought by the Purchaser Indemnified Parties in accordance with this ARTICLE IX, (b) 12 months after the Closing Date, the Purchaser shall pay to the extent not offset for indemnity payments due from any of the Shareholders) to the Shareholders Seller by bank or wire transfer of immediately available funds; providedfunds to the account designated in writing by the Seller at least one Business Day prior to such date, however, Buyer shall retain an amount in cash equal to the then remaining Holdback Amount less $500,000 less the aggregate amount of all unresolved claims for indemnification under this Article IX asserted prior to brought by the Release Date but not yet resolved (“Unresolved Claims”). Buyer will pay the portion of the Holdback Amount retained for Unresolved Claims to the Shareholders, to the extent the portion of the Holdback Amount is not utilized as payment for such claims resolved in favor of any Buyer Indemnitee, upon their resolution Purchaser Indemnified Parties in accordance with this Article ARTICLE IX, and (c) 18 months after the Closing Date, the Purchaser shall pay to the Seller by bank or wire transfer of immediately available funds to the account designated in writing by the Seller at least one Business Day prior to such date, an amount in cash equal to the then remaining Holdback Amount less the aggregate amount of all unresolved claims for indemnification brought by the Purchaser Indemnified Parties in accordance with this ARTICLE IX. No later than the third Business Day following the final resolution of any unresolved claim for which funds were so withheld by the Purchaser, any such funds not paid to Purchaser as a result of the resolution of such claims shall be paid by the Purchaser to the Seller by bank or wire transfer of immediately available funds to the account designated in writing by the Seller at least one Business Day prior to such date.

Holdback Amount. Any payment that For any Loss for which the Shareholders Sellers are obligated to make to any indemnify the Buyer Indemnitees, the Buyer Indemnitees pursuant to this Article IX shall, shall seek reimbursement for such Loss from the Holdback Amount first, to the extent that and once the Holdback Amount is greater than exhausted, then the indemnity paymentBuyer Indemnitees may proceed to collect the unreimbursed amount of such Loss: (a) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), be paid from any offset against any 2022 True-Up Payment, 2023 Accelerated True-Up Payment, and/or 2023 True-Up Payment, or (b) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), the Seller jointly and severally, subject to the Buyer Indemnitiees limitations set forth in this Agreement, which may be satisfied by an offset payment (to be made within fifteen (15) days after the final determination of such Losses) of such amount against of such Losses owed by the Sellers in immediately available funds to an account designated in writing by Buyer Indemnitees. The foregoing restrictions shall be in addition to, and not in limitation of, any further limitation of liability that might otherwise apply (whether by reason of a Buyer Indemnitee’s waiver, relinquishment or release of any applicable rights or otherwise). Buyer may not hold any portion of the Holdback Amount otherwise due to the Shareholders and accordingly will reduce the Holdback Amount and, secondly, to the extent that any additional sums are due more than twelve (12) months after the offset against the Holdback AmountClosing Date, the Shaerholders (as Indemnifying Party) shall pay all of such additional sums to the Buyer Indemnitees by wire transfer of immediately available funds within five (5) business days after demand unless mutually agreed upon by the Buyer Indemnitees. On parties, and on the Release Date, first annual anniversary of this Agreement Buyer shall pay the remaining Holdback Amount (Amount, less any pending claims to the extent not offset for indemnity payments due from Sellers. Once any of the Shareholders) to the Shareholders by wire transfer of immediately available funds; provided, however, Buyer shall retain an amount equal to the amount of pending claims for indemnification under this Article IX asserted prior to the Release Date but not yet are resolved (“Unresolved Claims”). Buyer will pay the portion of the Holdback Amount retained for Unresolved Claims to the Shareholders, to the extent the portion of the Holdback Amount is not utilized as payment for such claims resolved in favor of any Buyer Indemnitee, upon their resolution in accordance with this Article IXAgreement, the then remaining Holdback Amount shall be paid to Sellers.

Holdback Amount. Any payment that On the Shareholders are obligated to make to any Buyer Indemnitees Closing Date, the Purchaser shall withhold or be paid by Seller in accordance with Section 3.3: (a) the Purchase Price Holdback Amount for disbursement in accordance with the terms of this Agreement and which will be held for purposes of adjustment between the Estimated Purchase Price and the Final Purchase Price, and (b) the Indemnification Holdback Amount which will be held for purposes of making indemnification payments pursuant to this Article IX shall, first, to the extent X. Purchaser and Seller agree that the Holdback Amount is greater than part of the indemnity payment, be consideration paid to Seller and the Buyer Indemnitiees by an offset of such amount against obligation to pay the Holdback Amount otherwise due to Seller is absolute and unconditional, subject only to the Shareholders terms and accordingly will reduce the conditions of this Agreement. The remaining Indemnification Holdback Amount and, secondly, shall be released to Seller within five Business Days following the extent that any additional sums are due after third anniversary of the offset against the Holdback Amount, the Shaerholders (as Indemnifying Party) shall pay all of such additional sums to the Buyer Indemnitees Closing by wire transfer of immediately available funds within five (5) business days after demand by to such account or accounts of Seller as Seller specifies in writing to Purchaser in the Buyer Indemnitees. On manner specified herein for the Release Date, Buyer shall pay the remaining Holdback Amount (to the extent not offset for indemnity payments due from any delivery of the Shareholders) to the Shareholders by wire transfer of immediately available fundsnotices; provided, however, Buyer shall retain an amount equal to the amount of claims that if Purchaser has submitted a notice for indemnification under this Article IX asserted on or prior to the Release Date but third anniversary of the Closing and such indemnification claim is not yet resolved (“Unresolved Claims”). Buyer will pay finally determined until after the third anniversary of the Closing, then the Indemnification Holdback Amount shall remain subject to indemnification claim and any remaining portion of the Indemnification Holdback Amount retained for Unresolved Claims shall not be released to the Shareholders, Seller until after such indemnification claim shall have been finally determined and any indemnification payments to the extent the portion of the Holdback Amount is not utilized as payment for such claims resolved in favor of any Buyer Indemnitee, upon their resolution in accordance with this Article IXPurchaser have been made.

Holdback Amount. Any payment that (a) The Purchaser shall use the Shareholders are obligated to make to Holdback Amount as security in respect of any Buyer Indemnitees finally determined claim of a Purchaser Indemnified Party against the Vendors pursuant to this Article IX shallSection 2.6. (b) As soon as practicable after December 31, first2015, the Purchaser shall instruct the Actuary to promptly prepare and deliver the Final Actuarial Report to the extent that Purchaser and the Representative for the purposes of determining any changes between Estimated Closing Insurance Contract Liabilities and Final Insurance Contract Liabilities. Subject to the Purchaser’s right of set-off pursuant to Section 10.8, as promptly as practicable (but in no event later than five (5) Business Days) after the date of the Final Actuarial Report: (i) If the sum of Final Insurance Contract Liabilities plus Measurement Period Losses (the "Aggregate Liabilities Amount") is less than Target Insurance Contract Liabilities, the Purchaser shall pay the Holdback Amount to the Vendors, pro rata in accordance with their respective Percentage Interest in accordance with the instructions set forth in the Funds Flow Agreement, and the Cash Consideration shall be deemed to be increased by the amount of such payment. (ii) If the Aggregate Liabilities Amount is greater than Target Insurance Contract Liabilities, the indemnity payment, be paid to the Buyer Indemnitiees by an offset of such amount against Purchaser shall retain from the Holdback Amount otherwise due to the Shareholders full amount by which the Aggregate Liabilities Amount exceeds Estimated Closing Insurance Contract Liabilities (the "Deficiency"), and accordingly will reduce the Holdback Amount and, secondly, to the extent that any additional sums are due after the offset against the Holdback Amount, the Shaerholders (as Indemnifying Party) shall pay all of such additional sums to the Buyer Indemnitees by wire transfer of immediately available funds within five (5) business days after demand by the Buyer Indemnitees. On the Release Date, Buyer shall pay the remaining Holdback Amount (to the extent not offset for indemnity payments due from any of the Shareholders) to the Shareholders by wire transfer of immediately available funds; provided, however, Buyer shall retain an amount equal to the amount of claims for indemnification under this Article IX asserted prior to the Release Date but not yet resolved (“Unresolved Claims”). Buyer will pay the portion of the Holdback Amount retained for Unresolved Claims which remains following satisfaction of the Deficiency shall be paid by the Purchaser to the ShareholdersVendors, pro rata in accordance with their respective Percentage Interest in accordance with the instructions set forth in the Funds Flow Agreement, and the Cash Consideration shall be deemed to be increased by the extent the portion amount of such payment. For greater certainty, if the Holdback Amount is not utilized as payment less than the Deficiency, the Vendors shall have no liability for such claims resolved in favor of any Buyer Indemnitee, upon their resolution in accordance with this Article IXshortfall amount.

Holdback Amount. Any payment that (a) The Sellers hereby authorize and instruct the Shareholders are obligated Buyer to make to any Buyer Indemnitees pursuant to this Article IX shall, first, deduct from the Estimated Closing Payment otherwise payable to the extent Equityholders at the Closing an aggregate amount of $750,000 (the “Holdback Amount”) in order to support the Sellers’ indemnification obligations under Article VI and the Equityholders’ payment obligations under Section 1.5, if any. (b) Following the date that is 15 months after the Closing Date (the “Holdback Amount is greater than Expiration Date”), the indemnity payment, be paid Seller Representative shall deliver to the Buyer Indemnitiees by an offset updated Payment Spreadsheet including each Equityholder’s Pro Rata Portion of such amount against the Holdback Amount otherwise due to the Shareholders and accordingly will reduce the Holdback Amount and, secondly, to the extent that any additional sums are due after the offset against the Holdback Amount, less the Shaerholders (Adjustment Amount as Indemnifying Party) shall pay paid or reduced from the Holdback Amount in accordance with Section 1.5, less the sum of the aggregate amount of all of such additional sums claims for indemnification asserted in writing by the Buyer prior to the Buyer Indemnitees by wire transfer Holdback Expiration Date pursuant to and in accordance with Article VI, less any Company Transaction Expenses arising in connection with the release of immediately available funds within the Holdback Amount (such amount, the “Holdback Release Amount”). Within five (5) business days after demand by Business Days of receiving such updated Payment Spreadsheet, the Buyer Indemnitees. On the Release Date, Buyer shall (i) pay the remaining Holdback Amount (or deliver to the extent not offset Company for indemnity payments due from any payment of the Shareholders(as applicable) to the Shareholders by wire transfer of immediately available funds; provided, however, Buyer shall retain an amount equal to the amount of claims for indemnification under this Article IX asserted prior to the Release Date but not yet resolved (“Unresolved Claims”). Buyer will pay the that portion of the Holdback Amount retained Release Amount, if any, designated for Unresolved Claims the holders of Cancelled Options to such holders through payroll as soon as reasonably practical and (ii) deliver the Shareholdersremaining Holdback Release Amount, if any, to the extent Paying Agent for payment to the portion remaining Equityholders, in each case, in accordance with the updated Payment Spreadsheet and each of their respective Pro Rata Portions. Any Company Transaction Expenses arising in connection with the payment of the Holdback Release Amount is not utilized as payment for such claims resolved in favor of any Buyer Indemnitee, upon their resolution in accordance with this Article IXshall be retained by the Buyer.

Holdback Amount. Any payment that For any Loss for which the Shareholders Seller Parties are obligated to make to any indemnify the Buyer Indemnitees, the Buyer Indemnitees pursuant to this Article IX shall, shall seek reimbursement for such Loss from the Holdback Amount first, to the extent that and once the Holdback Amount is greater than exhausted, then the indemnity paymentBuyer Indemnitees may proceed to collect the unreimbursed amount of such Loss: (a) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), be paid from any offset against any Year 1 Earnout and/or Year 2 Earnout, or (b) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), the Seller Parties jointly and severally, subject to the Buyer Indemnitiees limitations set forth in this Agreement, which may be satisfied by an offset payment (to be made within fifteen (15) days after the final determination of such Losses) of such amount against of such Losses owed by the Seller Parties in immediately available funds to an account designated in writing by Buyer Indemnitees. The foregoing restrictions shall be in addition to, and not in limitation of, any further limitation of liability that might otherwise apply (whether by reason of a Buyer Indemnitee’s waiver, relinquishment or release of any applicable rights or otherwise). Buyer may not hold any portion of the Holdback Amount otherwise due to the Shareholders and accordingly will reduce the Holdback Amount and, secondly, to the extent that any additional sums are due more than twelve (12) months after the offset against the Holdback AmountClosing Date, the Shaerholders (as Indemnifying Party) shall pay all of such additional sums to the Buyer Indemnitees by wire transfer of immediately available funds within five (5) business days after demand unless mutually agreed upon by the Buyer Indemnitees. On parties, and on the Release Date, first annual anniversary of this Agreement Buyer shall pay the remaining Holdback Amount (Amount, less any pending claims to the extent not offset for indemnity payments due from Sellers. Once any of the Shareholders) to the Shareholders by wire transfer of immediately available funds; provided, however, Buyer shall retain an amount equal to the amount of pending claims for indemnification under this Article IX asserted prior to the Release Date but not yet are resolved (“Unresolved Claims”). Buyer will pay the portion of the Holdback Amount retained for Unresolved Claims to the Shareholders, to the extent the portion of the Holdback Amount is not utilized as payment for such claims resolved in favor of any Buyer Indemnitee, upon their resolution in accordance with this Article IXAgreement, the then remaining Holdback Amount shall be paid to Sellers.

Holdback Amount. Any payment (a) The Significant Shareholder hereby covenants and agrees that the Shareholders are obligated amount of $5,000,000 (the “Initial Holdback Amount”) shall be automatically netted out of the portion of the Closing Merger Consideration payable to make to any Buyer Indemnitees the Significant Shareholder pursuant to this Article IX Agreement. On the date which is 15 months from the Closing Date (the “Holdback Payment Date”), the Purchaser and the Company shall, firston a joint and several basis, pay to the extent that the Holdback Amount is greater than the indemnity paymentSignificant Shareholder, be paid to the Buyer Indemnitiees by an offset of such amount against the Holdback Amount otherwise due to the Shareholders and accordingly will reduce the Holdback Amount and, secondly, to the extent that any additional sums are due after the offset against the Holdback Amount, the Shaerholders (as Indemnifying Party) shall pay all of such additional sums to the Buyer Indemnitees by wire transfer of immediately available funds within to such accounts as the Significant Shareholder may direct, an amount (the “Remaining Holdback Amount”) equal to (A) the Initial Holdback Amount, minus (B) the amount of any decreases to the Holdback Amount pursuant to Section 2.13, 6.5 or 9; provided, that, the amount of the Remaining Holdback Amount payable on the Holdback Payment Date shall be reduced (but not below zero) by the amount of each Unsatisfied Claim pending on the Holdback Payment Date; and, provided, further, that the Remaining Holdback Amount as such term is used in this Section 2.11 shall include the aggregate amount of interest that has accrued (and remains unpaid) on the rest of the Remaining Holdback Amount as of such payment date based on a rate of one percent (1.0%) per annum. (b) Within five (5) business days after demand by Business Days of the Buyer Indemnitees. On issuance of the Release final, non-appealable determination of a court of competent jurisdiction with respect to any Unsatisfied Claim which was pending on the Holdback Payment Date, Buyer shall the Purchaser and the Company shall, on a joint and several basis, pay the remaining Holdback Amount (to the extent not offset for indemnity payments due from any of the Shareholders) to the Shareholders Significant Shareholder, by wire transfer of immediately available funds; providedfunds to such accounts as the Significant Shareholder may direct, however, Buyer shall retain an amount equal to the amount by which payment of claims for indemnification under this Article IX asserted prior the Remaining Holdback Amount on the Holdback Payment Date pursuant to the Release Date but not yet resolved Section 2.11(a) was reduced in respect of such Unsatisfied Claim (“Unresolved Claims”). Buyer will pay net of the portion of such amount (if any) to which the Holdback Amount retained for Unresolved Claims Purchaser or the Purchaser Indemnified Persons, or any of them, have been so determined to the Shareholders, to the extent the portion of the Holdback Amount is not utilized as payment for such claims resolved in favor of any Buyer Indemnitee, upon their resolution in accordance with this Article IXbe entitled).