Common use of Holdback Amount Clause in Contracts

Holdback Amount. (a) The Holdback Amount shall serve as security and a source from which the Buyer Indemnified Parties may (upon notice to Sellers, which shall include reasonable evidence of such right to indemnification) offset, satisfy and recoup any right to indemnification or other amounts payable hereunder to which any Buyer Indemnified Party is entitled under this Article XII. Subject to Section 12.7(b), the Holdback Amount shall be the initial source of recovery for claims under Article XII. (b) Subject to the limitations set forth in this Article XII, with respect to any Claim under (i) Section 12.1(a) (x) resulting from a breach of the Fundamental Representations or the Tax Representations or (y) based upon Fraud, (ii) Section 12.1(b), or (iii) Section 12.1(c), and only after (A) the full Holdback Amount has been made subject to a good faith Claim or Claims or has been otherwise exhausted pursuant to the terms of this Agreement or (B) the Holdback Amount has been released to Sellers pursuant to Section 12.7(c), the Buyer Indemnified Parties may seek recourse directly from Sellers for the remaining amount of the applicable Losses. (c) On the one-year anniversary of the Closing Date, Buyer shall pay to Sellers, by wire transfer of immediately available funds, an aggregate amount equal to the Holdback Amount, minus the aggregate amount of Losses for (i) all resolved Claims and (ii) any unresolved good faith Claims ("Unresolved Claims"); provided that Buyer shall promptly pay to Sellers any amounts owed to Sellers upon and in accordance with the resolution of any Unresolved Claims.

Holdback Amount. The Seller and the Purchaser hereby acknowledge and agree that: (a) The Holdback Amount shall serve as security and a source from which the Buyer Indemnified Parties may (upon notice to Sellers, which shall include reasonable evidence of such right to indemnification) offset, satisfy and recoup any right to indemnification or other amounts payable hereunder to which any Buyer Indemnified Party is entitled under this Article XII. Subject to Section 12.7(b), the Holdback Amount shall be withheld from the initial source Purchase Price by the Purchaser, of recovery which the First Tranche Holdback Amount shall be used to satisfy any indemnification obligations of the Seller pursuant to Section 6.3(a) and Section 6.3(c) and the Second Tranche Holdback Amount shall be used for claims under Article XII.payment of Public Notice 7 Tax with respect to sale of the Sale Securities by the Seller pursuant to Section 5.2(d); (b) Subject to the limitations set forth in this Article XIIextent applicable, with respect to any Claim under (i) Section 12.1(a) (x) resulting from a breach of the Fundamental Representations or the Tax Representations or (y) based upon Fraud, (ii) Section 12.1(b), or (iii) Section 12.1(c), and only after (A) the full Holdback Amount has been made subject any amount payable to a good faith Claim or Claims or has been otherwise exhausted pursuant to the terms of this Agreement or (B) the Holdback Amount has been released to Sellers any Purchaser Indemnified Party pursuant to Section 12.7(c6.3(a) and Section 6.3(c) shall be paid first from the First Tranche Holdback Amount in accordance with Section 1.3(c), the Buyer Indemnified Parties may seek recourse directly from Sellers for the remaining amount of the applicable Losses. (c) On the one-year anniversary of the Closing Date, Buyer shall pay to Sellers, by wire transfer of immediately available funds, an aggregate amount equal to the Holdback Amount, minus the aggregate amount of Losses for (i) all resolved Claims and (ii) any unresolved good faith Claims ("Unresolved Claims"); provided that Buyer amount to be paid by the Seller pursuant to Section 5.2(d) shall promptly pay to Sellers any amounts owed to Sellers upon and be paid first from the Second Tranche Holdback Amount in accordance with Section 5.2(d); (c) within three (3) Business Days after the resolution First Holdback Expiration Date, the Purchaser shall pay to the Seller into an account designated by the Seller an amount equal to the result of (x) the First Tranche Holdback Amount, minus (y) the amount, if any, owed by the Seller to any Unresolved ClaimsPurchaser Indemnified Party pursuant to Section 6.3(a) and Section 6.3(c) and not otherwise paid to such Purchaser Indemnified Party in cash prior to the First Holdback Expiration Date; and (d) within two (2) Business Days after the applicable Second Holdback Expiration Date, the Purchaser shall pay to the Seller into an account designated by the Seller an amount out of the Second Tranche Holdback Amount determined in accordance with Section 5.2(d).

Holdback Amount. (a) The Holdback Amount shall serve as security and To the extent that a source from which the Buyer Indemnified Parties may (upon notice to Sellers, which shall include reasonable evidence of such right to indemnification) offset, satisfy and recoup any right to indemnification or other amounts payable hereunder to which any Buyer Cipher Indemnified Party is entitled to Losses arising from an Indemnification Claim or Damages arising from a Damages Claim pursuant to this Agreement, then, in addition to any rights of set-off or other rights that such Cipher Indemnified Party may have at common law or otherwise, Cipher (on behalf of such Cipher Indemnified Party) shall have the right to set-off any Losses or Damages to which such Cipher Indemnified Party may be entitled to under this Article XII. Subject to Section 12.7(b), Agreement against the Holdback Amount (on a dollar-for-dollar basis), provided that: (i) in the event a Cipher Indemnified Party is required to satisfy any such Losses with an out-of-pocket cash payment to any Third Party, Cipher (on behalf of such Cipher Indemnified Party) may, in its sole discretion, require that Correvio satisfy any indemnification obligations hereunder relating to such Losses in cash; and (ii) if the aggregate amount of any Losses in respect of Indemnification Claims or Damages in respect of a Damages Claim exceeds the Holdback Amount, Correvio shall be required to satisfy all such amounts in excess of the initial source of recovery for claims under Article XIIHoldback Amount in cash. (b) Subject to Notwithstanding the limitations set forth foregoing, and without in any manner limiting the rights of indemnification in favour of the Cipher Indemnified Parties under this Article XII9, with respect to any Claim under (i) Section 12.1(a) (x) resulting from a breach of the Fundamental Representations or the Tax Representations or (y) based upon Fraud, (ii) Section 12.1(b), or (iii) Section 12.1(c), and only after (A) the full Holdback Amount has been made subject to a good faith Claim or Claims or has been otherwise exhausted pursuant to the terms of this Agreement or (B) the Holdback Amount has been released to Sellers pursuant to Section 12.7(c), the Buyer Indemnified Parties may seek recourse directly from Sellers for the remaining amount of the applicable Losses. (c) On the one-year anniversary of the Closing Date, Buyer Cipher shall pay to Sellers, by wire transfer of immediately available funds, an aggregate amount equal to Correvio the Holdback Amount, minus the aggregate amount of Losses for as follows: (i) all resolved Claims and twenty-five percent (25%) of the Holdback Amount on the date that is three (3) months following the Effective Date, (ii) any unresolved good faith Claims twenty-five percent ("Unresolved Claims"); provided 25%) of the Holdback Amount on the date that Buyer shall promptly pay to Sellers is six (6) months following the Effective Date, (iii) twenty-five percent (25%) of the Holdback Amount on the date that is nine (9) months following the Effective Date, and (iv) twenty-five percent (25%) of the Holdback Amount on the date that is twelve (12) months following the Effective Date, less, in each case, any amounts owed that are permitted to Sellers upon be deducted from, and in accordance with subject to set-off against, the resolution of any Unresolved ClaimsHoldback Amount pursuant to Subsection 9.9(a), as at each respective payment date.

Holdback Amount. (ai) The On each Holdback Amount shall serve as security and a source from which Release Date, Buyer will pay, or cause to be paid, to the Buyer Indemnified Parties may Sellers in accordance with Section 2.7 (upon notice to Sellersin all cases, without interest thereon), an amount, which shall include reasonable evidence not be less than $0, equal to (I) the Holdback Quarterly Payment Amount for such Holdback Release Date, minus (II) the sum of such right to indemnification(1) offset, satisfy and recoup any right to indemnification or other all amounts payable hereunder to which any Buyer Indemnified Party is entitled under this Article XII. Subject to Section 12.7(b), offset against the Holdback Amount shall be in satisfaction of a Purchase Price Overpayment pursuant to Section 2.4(f) and amounts used in satisfaction of claims for indemnification or setoff pursuant to Section 9.2, but not previously offset against a prior Holdback Quarterly Payment Amount, plus (2) the initial source aggregate amount of recovery for (x) any and all claims under Article XIISection 9.2 asserted prior to the occurrence of the applicable Holdback Release Date but not yet resolved plus (y) if the Cash Purchase Price has not been finally determined in accordance with Section 2.4, an amount equal to Buyer’s reasonable and good faith estimate of the Purchase Price Overpayment amount (but, for the avoidance of doubt, in each case without duplication of any existing offset against the Holdback Amount) (subsection (x) and subsection (y), collectively, “Unresolved Claims”), plus (3) solely with respect to the final Holdback Release Date, (x) an amount equal to (i) the Uncollected Closing A/R minus (ii) the Closing AFDA Amount and (y) an amount equal to the Warranty Expenses. For the avoidance of doubt, any reduction of the Holdback Amount pursuant to Section 2.4(f) will in all cases reduce Buyer’s payment obligations in this Section 2.1(c) with respect to the Holdback Amount or any portion thereof. (bii) Subject to the limitations set forth in this Article XII, with With respect to any Claim under (i) Section 12.1(a) (x) resulting remaining balance attributable to Unresolved Claims and not otherwise subject to offset or amounts reduced from a breach Holdback Quarterly Payment amount pursuant to Section 2.1(c)(i)(II)(2), Buyer will pay, or cause to be paid, to the Sellers in accordance with Section 2.7, in all cases, without interest thereon, amounts not to exceed such balance in the aggregate, promptly, but in any event within ten (10) Business Days (to the extent not utilized to satisfy any such Unresolved Claims resolved in favor of Buyer) of the Fundamental Representations resolution of any such Unresolved Claim or final determination of the Tax Representations Cash Purchase Price in accordance with Section 2.4 or (y) based upon FraudARTICLE 9, (ii) Section 12.1(b), or as applicable. (iii) Section 12.1(c), Within thirty (30) days after the Uncollected Closing A/R and only after (A) the full Holdback Amount has been made subject to a good faith Claim or Claims or has been otherwise exhausted pursuant to the terms of this Agreement or (B) the Holdback Amount has been released to Sellers pursuant to Section 12.7(c), the Buyer Indemnified Parties may seek recourse directly from Sellers for the remaining amount of the applicable Losses. (c) On the one-year anniversary of the Closing Warranty Expense Calculation Date, Buyer shall pay prepare or cause to Sellers, by wire transfer of immediately available funds, an aggregate amount equal be prepared and delivered to the Holdback AmountSellers’ Representative a written statement (the “Closing A/R and Warranty Statement”), minus the aggregate amount of Losses for (i) all resolved Claims and (ii) any unresolved setting forth in reasonable detail Buyer’s good faith Claims calculation of the Uncollected Closing A/R and the Warranty Expenses. If the Sellers’ Representative disputes the calculation of Uncollected Closing A/R or the Warranty Expenses set forth in the Closing A/R and Warranty Statement, then the Sellers’ Representative shall deliver a written notice ("Unresolved Claims"an “A/R and Warranty Dispute Notice”) to Buyer at any time during the twenty (20)-day period commencing upon receipt by the Sellers’ Representative of the Closing A/R and Warranty Statement (the “A/R and Warranty Review Period”); provided that Buyer . The A/R and Warranty Dispute Notice shall promptly pay to Sellers set forth the basis for the dispute of any amounts owed to Sellers upon such calculation in reasonable detail and the Sellers’ Representative’s proposed resolution of each such dispute. Each line item of the Closing A/R and Warranty Statement which is not disputed in the A/R and Warranty Dispute Notice in accordance with the resolution immediately preceding sentence shall be deemed to have been accepted by the Sellers’ Representative and shall become final and binding upon the Sellers and Buyer. If the Sellers’ Representative and Buyer are unable to reach agreement on the Uncollected Closing A/R or the Warranty Expenses that are in dispute within twenty (20) days after the end of the A/R and Warranty Review Period, then any Unresolved Claimssuch remaining disagreements shall be resolved by the Designated Accounting Firm in accordance with the procedures, and the fees and expenses of the Designated Accounting Firm shall be borne by the Sellers’ Representative, on the one hand, and Buyer, on the other hand, in accordance with the rules set forth in Section 2.4(d).

Holdback Amount. (ai) The Holdback Amount shall serve as security Notwithstanding anything herein to the contrary, except with respect to Losses relating to the Exclusions, the Remaining Payment Obligations and a Losses pursuant to Section 9.02(a)(ii), the sole and exclusive source from which of funds for satisfaction of any claims against the Buyer Indemnitors or the Interest Holder Representative under this Agreement, including claims under Section 2.13, pursuant to Sections 6.06, 6.07, 6.08 and 6.09 and any claims that the Parent Indemnified Parties may have against the Indemnitors pursuant to this Agreement, shall be (upon notice A) an offset against the Adjusted Indemnity Holdback Amount, (B) solely with respect to Sellersrecovering under Section 6.07, which shall include reasonable evidence of such right an offset against (x) the Adjusted Indemnity Holdback Amount and, (y) to indemnification) offset, satisfy the extent the Adjusted Indemnity Holdback Amount is exhausted and recoup any right to indemnification or other amounts payable hereunder to which any Buyer Indemnified Party is entitled under this Article XII. Subject subject to Section 12.7(b2.14(g), any Yearly Earn-Out Payment earned but not yet paid, (C) solely with respect to recovering under Section 6.09 (as it relates to the Special Holdback Amount shall be Projects), an offset against the initial source of Adjusted Special Holdback Amount, and (D) solely with respect to recovery for claims under Article XIISection 2.13, the Net Worth Reserve. (b) Subject to the limitations set forth in this Article XII, with respect to any Claim under (i) Section 12.1(a) (x) resulting from a breach of the Fundamental Representations or the Tax Representations or (y) based upon Fraud, (ii) Section 12.1(b), or (iii) Section 12.1(c), and only after (A) All claims for Losses made by any Parent Indemnified Party in respect of Exclusions shall first be satisfied by an offset against the full Holdback Amount has been made subject to a good faith Claim or Claims or has been otherwise exhausted pursuant to the terms of this Agreement or (B) the Holdback Amount has been released to Sellers pursuant to Section 12.7(c), the Buyer Indemnified Parties may seek recourse directly from Sellers for the remaining amount of the applicable Losses. (c) On the one-year anniversary of the Closing Date, Buyer shall pay to Sellers, by wire transfer of immediately available funds, an aggregate amount equal to the Adjusted Indemnity Holdback Amount, minus and no Parent Indemnified Party shall be permitted to make a claim in respect of Exclusions (other than a claim for offset against the aggregate amount of Losses for (iAdjusted Indemnity Holdback Amount) all resolved Claims and (ii) any unresolved good faith Claims ("Unresolved Claims"); provided that Buyer shall promptly pay pursuant to Sellers any amounts owed this Agreement until the Adjusted Indemnity Holdback Amount is fully depleted. No offset can be made pursuant to Sellers upon and this Article IX against the Adjusted Indemnity Holdback Amount unless the Interest Holder Representative consents in accordance with the resolution of any Unresolved Claimswriting or there is a Final Order.

Holdback Amount. (a) The Holdback Amount (including any Escrowed Holdback Amount) shall serve as security and a source from which be available to compensate the Buyer Purchaser Indemnified Parties may (upon notice to Sellers, which for their Indemnification Claims and the Purchaser shall include reasonable evidence of such have the right to indemnificationset off, or make a claim pursuant to the Escrow Agreement, against the Holdback Amount (including any Escrowed Holdback Amount) offset, satisfy and recoup in an amount equal to any right indemnification obligations of the Company or the Selling Members pursuant to indemnification or other amounts payable hereunder to which any Buyer Indemnified Party is entitled under this Article XII7 (subject to the right of the Selling Members to dispute any such Indemnification Claims and the resolution of any disputes in the manner set forth in this Article 7). Subject Notwithstanding anything to the contrary set forth in this Agreement (but subject to the provisions of Section 12.7(b7.2(c)(iii) below), the Holdback Amount shall be the initial Purchaser Indemnified Parties’ sole and exclusive security and source of recovery for claims any of their Indemnification Claims under Article XII. and pursuant to clause (bi) Subject of Section 7.2(a); provided, however, that notwithstanding the foregoing or anything to the limitations contrary set forth in this Article XIIAgreement, with respect to any Claim under (i) Section 12.1(a) (x) resulting from a breach of the Fundamental Representations or the Tax Representations or (y) based upon Fraud, (ii) Section 12.1(b), or (iii) Section 12.1(c), and only after (A) the full Holdback Amount has been made preceding restrictions set forth in this Section 7.2(c)(ii) shall not in any way limit or otherwise restrict any right in respect of any Indemnification Claims under or pursuant to clauses (ii) through (viii) of Section 7.2(a) inclusive (but subject to a good faith Claim other limitations on indemnification expressly set forth in this Agreement), or Claims any other claims or has been otherwise exhausted pursuant to causes of action arising out of fraud or intentional misrepresentation under applicable law by the terms Company (or any of this Agreement its agents) or the Selling Members, (B) no Indemnified Party shall be precluded, restricted or otherwise limited in respect of bringing or participating in any claims or causes of action arising out of fraud or intentional misrepresentation or with respect to amounts recoverable against any Person arising out of the fraud or intentional misrepresentation by such Person; and (C) any Damages for Indemnification Claims of the Purchaser Indemnified Parties which exceed the Holdback Amount has been released to Sellers and which may be recovered by the Purchaser Indemnified Parties from the Selling Members pursuant to Section 12.7(c)this Agreement shall be paid 50% in cash and 50% in Parent Shares (assuming, the Buyer Indemnified Parties may seek recourse directly from Sellers for the remaining amount purposes of the applicable Losses. this clause (cC) On the one-year anniversary of the Closing Dateonly, Buyer shall pay to Sellers, by wire transfer of immediately available funds, an aggregate amount a value per share for each Parent Share equal to the Holdback AmountStock Indemnity Value), minus provided that, if the aggregate amount total value of Losses for (i) all resolved Claims the Parent Shares owned by the Selling Members as of the time such Damages are determined to be due and (ii) any unresolved good faith Claims ("Unresolved Claims"); provided that Buyer payable to Purchaser are less than 50% of the Damages so determined, the percentage of such Damages required to be paid in cash shall promptly pay be increased accordingly to Sellers any amounts owed to Sellers upon and in accordance cover, together with the resolution total value of the Parent Shares then owned by the Selling Members, 100% of the Damages. For the purposes of this Agreement, “Stock Indemnity Value” shall mean $3.45 per share, which amount represents a per share value solely for the purposes of the indemnification provisions of this Agreement, which amount has been negotiated on an arms-length basis by the parties hereto, and shall not at any Unresolved Claimstime be construed to be the fair market value of the Parent Shares for any other purpose, including without limitation, Tax reporting purposes.