Indemnification Holdback. (a) At Closing, $5,850,000 of the Purchase Price will be held back by the Purchaser as security of the indemnification obligations of Parent and Seller under Section 8.1 hereof (the "Indemnification Holdback"); provided, however, that, subject to the other limitations set forth herein, Purchaser shall be entitled to seek indemnification hereunder following the release of the Indemnification Holdback. Any portion of the Indemnification Holdback not previously released to Purchaser as a result of an indemnification claim by Purchaser shall be released to Seller at the end of the Holdback Period; provided, however, that a portion of the Indemnification Holdback, which, in the reasonable judgment of Purchaser, is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate theretofore delivered to Parent and/or Seller prior to termination of the Holdback Period with respect to facts and circumstances existing prior to expiration of the Holdback Period, shall be retained by Purchaser until such claims have been resolved.
(b) On the Release Date, Purchaser shall pay to Seller any portion of the Indemnification Holdback not previously paid to Purchaser for indemnification hereunder, less the dollar amount equal to any portion of the Indemnification Holdback subject to retention by Purchaser in accordance with Section 8.2(a) with respect to any pending but unresolved indemnification claims of Purchaser. Any portion of the Indemnification Holdback held as a result of this Section 8.2(b) shall be paid to Seller or retained by Purchaser (as appropriate) promptly upon resolution of each specific claim involved.
Indemnification Holdback. At the Closing, Parent shall deduct from the Closing Consideration the amount of Parent Common Shares equal to $7.5 million, based on the Value of such shares on December 31, 2019, rounded up to the nearest whole number to avoid any fractional shares (the "Retained Parent Common Shares"), which shall be held by Parent in a segregated brokerage account (the "Indemnification Account") along with quarterly dividends earned on the Retained Parent Common Shares (the "Retained Dividends"), for the benefit of the Securityholders, until such Retained Parent Common Shares and Retained Dividends are delivered to the Securityholders pursuant to the provisions of Section 8.08(b). For the avoidance of doubt, Retained Dividends shall be used first in satisfaction of any claims, prior to liquidating and using any Retained Parent Common Shares that are ultimately used for the satisfaction of any claim under Section 8.02, and any such Retained Dividends (including any Retained Dividends pertaining to any Retained Parent Common Shares where such shares are used for the satisfaction of any claim under Section 8.02, because for example at the time of payment in settlement of any such claim those dividends had not been declared and paid) will not be delivered to Securityholders, but rather shall be returned to, and remain the exclusive property of, Parent.
Indemnification Holdback. (a) 250,000 Shares (prior to any adjustment pursuant to Section 2.05(a)) shall be placed in an escrow account (the "Escrow Fund") with Greater Bay Trust Company (the "Escrow Agent") following the Closing to be available for indemnification claims pursuant to Section 5.01, if any (the "Indemnification Shares") for a period not to exceed three hundred sixty (360) days following the Closing (the "Escrow Period"), except as otherwise provided below. One hundred eighty (180) days after the Closing, 125,000 Shares (less the number of any Shares paid or claimed to be payable in connection with any claim pursuant to Section 5.01) shall be released from escrow, and three hundred sixty (360) days after the Closing, the remaining Shares shall be released from escrow. Notwithstanding the foregoing, to the extent insufficient shares remain in escrow, Seller shall meet its responsibilities pursuant to Sections 5.01 and 5.02 to indemnify the Purchaser's Indemnified Person's with timely cash payments in any amount or amounts up to and including the Indemnification Limit. Furthermore, existence of the Escrow Fund shall be extended in an amount equal to that portion of the Escrow Fund which, in the reasonable judgement of Purchaser, subject to the objection of Seller and the subsequent arbitration of the matter in the manner provided in Section 5.03(d) hereof, is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate (as defined below) theretofore delivered to the Escrow Agent prior to the end of the Escrow Period (which amount shall remain in the Escrow Fund until such claims have been resolved). As soon as all such claims have been resolved, the Escrow Agent shall deliver to Seller the remaining portion of the Escrow Fund not required to satisfy such claims.
(b) The Escrow Agent shall hold and safeguard the Escrow Fund during the Escrow Period, shall treat such fund as a trust fund in accordance with the terms of this Agreement and not as the property of Purchaser and shall hold and dispose of the Escrow Fund only in accordance with the terms hereof.
(c) Upon receipt by the Escrow Agent at any time on or before the last day of the Escrow Period of a certificate signed by any officer of Purchaser (an "Officer's Certificate"): (A) stating that Purchaser has incurred and paid or properly accrued Losses, or reasonably anticipates that it may have to pay or accrue Losses, and (B) specifying in reasonable detail the individual items of Losses include...
Indemnification Holdback. 23,500 shares of the Townsgate Preferred Stock, 23,500 shares of the GGW Preferred Stock and 20,000 shares of the Mosam Preferred Stock issued at Closing shall be deposited into escrow with the Escrow Agent, pursuant to an escrow agreement (the “Indemnification Escrow Agreement”) in the form of Exhibit B hereto. The Townsgate Preferred Stock, GGW Preferred Stock and Mosam Preferred Stock held in escrow shall serve as security for the indemnification obligations of the Pivotshare and Mosam set forth in Article VI. Except as set forth in Section 6.6 of this Agreement, nothing in this Section 1.5, however, shall be construed as limiting the liability of the Key Holders for indemnification claims as set forth in Article VI, nor shall payments from such escrow be considered as liquidated damages for any breach under this Agreement or any other Transaction Document (as defined) or as modifying the relevant provisions of Article V.
Indemnification Holdback. A portion of the Initial Consideration in the amount of Five Hundred Thousand and 00/100 Dollars ($500,000) (the “Indemnification Holdback Amount”) shall be delivered to an escrow agent (the “Escrow Agent”) for purposes of providing additional security for the indemnification obligations of the Sellers under Section 11. The Escrow Agent shall be selected by Buyer and be reasonably acceptable to Company. The Indemnification Holdback Amount shall be placed in an interest-bearing escrow account by the Escrow Agent and shall be subject to the applicable provisions of this Agreement and the provisions of the Escrow Agreement in substantially the form attached as Exhibit A (the “Escrow Agreement”) between Buyer, the Shareholders’ Agent and the Escrow Agent. Subject to the Escrow Agreement and subject to any claims asserted by Buyer or the Surviving Corporation pursuant to Section 11, the Indemnification Holdback Amount (together with accrued interest) shall be released in full to the Shareholders’ Agent for the benefit of the Shareholders on the date which is thirty (30) days following the first anniversary of the Effective Time.
Indemnification Holdback. 28 7.1 Indemnification of Buyer and Precept . . . . . . . . . . . . . . . . . . 28 7.2 Notification of Claim; Set Off . . . . . . . . . . . . . . . . . . . . . 29 7.3
Indemnification Holdback. If the Parent makes a written claim for indemnification to a Principal Shareholder in accordance with Section 8(b) above prior, to the expiry date of the Convertible Debenture:
(i) if such claim is in respect of Operational Matters, the Parent shall be entitled to withhold from and setoff against any amounts owing under the Convertible Debenture and scheduled to be paid on the Maturity Date (as defined in the Convertible Debenture) the amount of such claim, to a maximum of the Indemnification Amount pending determination of such claim; or
(ii) if such claim is in respect of Fundamental Matters, the Parent shall be entitled to withhold from and setoff against any amounts owing under the Convertible Debenture the amount of such claim. Amounts owing under the Convertible Debenture shall be a nonexclusive source of indemnification with respect to any Fundamental Matters, and, subject to the provisions set forth in Section 8(b) above, shall not otherwise limit the liability of the Shareholders with respect to indemnification under this Agreement. For clarification, the Parent shall first withhold from and setoff against amounts owing under the Convertible Debenture the amount of any indemnification claim before making any indemnification claim against the Shareholders relating to that other portion of the Merger Consideration received by the Shareholders on Closing. Any disagreement with respect to the determination of any claim for indemnification shall be resolved in the manner set forth in Section 10(p) below. The arbitrator shall issue its report as to the validity of such claim for indemnification within sixty (60) days after such dispute is referred to such arbitrator. The Principal Shareholders on the one hand, and the Parent on the other hand, shall bear all costs and expenses incurred by it in connection with such arbitration, except that the fees and expenses of the arbitrator hereunder shall be borne by the Principal Shareholders and the Parent in such proportion as such arbitrator shall determine based on the relative merit of the position of the parties. This provision for arbitration shall be specifically enforceable by the Parties and the decision of such arbitrator in accordance with the provisions hereof shall be final and binding with respect to the matters so arbitrated and there shall be no right of appeal therefrom. If a claim for indemnification by the Parent is finally determined to be valid pursuant to this Section 8(c), the balance paya...
Indemnification Holdback. (a) All representations, warranties, covenants and agreements contained in this Agreement and in any other document delivered pursuant hereto shall be deemed to be material and to have been relied upon by the parties hereto. All representations and warranties contained herein shall survive the Closing for a period of one (1) year after the Closing Date. All covenants and agreements contained herein shall survive the Closing for the period specified in such covenant or agreement or, if no period is so specified, for a period of two (2) years after the Closing Date.
(b) The Sellers shall, jointly and severally, indemnify and hold harmless Purchaser and WinStar from and against, and shall reimburse Purchaser and WinStar, solely through the return to Purchaser from the funds constituting the Escrow Deposit pursuant to the terms of the Escrow Agreement, for any Damages (as hereinafter defined) which may be sustained, suffered or incurred by Purchaser, whether as a result from or in connection with or attributable to (i) the conduct of the Business by the Sellers on or prior to the Closing Date, (ii) the Excluded Liabilities or the Excluded Assets, or (iii) the breach of any of the Sellers' covenants, representations, warranties, agreements, obligations or undertakings contained in this Agreement. "Damages" as used in this Agreement means the dollar amount of any loss, damage, expense or liability (including, without limitation, reasonable attorneys' fees) sustained, suffered or incurred by the Purchaser or WinStar, reduced by any amounts actually received by Purchaser or WinStar (net of any deductibles, fees and expenses, but excluding any premiums) from any recovery made by Purchaser or WinStar from a third party (other than Sellers) in respect thereof. The Escrow Agreement shall be in the form of Exhibit C annexed hereto. The rights of the Purchaser and WinStar with respect to payment of the Expense Reimbursement and the Termination Fee are independent of and in addition to their rights under this Section 9.8.
Indemnification Holdback. (a) As partial security for the indemnity obligations of the Company and the Shareholders under this Article 7, the Shareholders hereby agree that, at the Effective Time of the Merger, the aggregate amount of Five Hundred Thousand Dollars ($500,000) (the "Indemnification Funds") will be withheld from the Merger Consideration otherwise issuable to the Shareholders. The Shareholders agree that, pending their disbursement in accordance with Section 7.3(b) hereof, the Indemnification Funds will be retained by Acquiror, without any obligation to set them aside in a separate account. In consideration of the foregoing, Acquiror hereby agrees the Indemnification Funds shall accrue interest at a rate equal to five percent (5%) per annum calculated on the basis of a year of 365 days, as applicable. Fifty percent of the accrued interest shall be paid to Mr. Xxxxx xxxhin 10 days after the end of each fiscal quarter, commencing with the first quarter of fiscal 1999. The remaining interest shall be paid on the Release Date. Any amounts not paid on or before the Release Date, which are subsequently paid to Shareholders, shall bear interest at the rate of 1% per month until paid.
Indemnification Holdback. (a) At the Closing, Buyer will hold back the aggregate amount of $5,200,000 (the “Holdback”) which amount will be applied against the Stockholders’ obligations to indemnify Buyer pursuant to Section 10 and Section 11 of this Agreement. The Holdback is to be disbursed in the manner set forth in this Section 3.1.
(b) The notional Holdback amount will be increased by an interest rate equal to the interest rate enjoyed by Buyer in its money market mutual fund customarily utilized by Buyer, which currently is, and is anticipated to continue to be, the Bank of America Automated Overnight Investment Account, from the Closing Date through the date the Holdback is disbursed in full in accordance with this Agreement. Buyer will provide Holdback interest rate information as any of the Stockholders may reasonably request in writing from time to time.
(c) Eighteen months after the Closing Date (the “Holdback Release Date”), Buyer will pay to each Stockholder, by wire transfer of immediately available funds to such account or accounts as such Stockholder will have identified in writing to Buyer prior to such payment, an amount equal to the product of (i) the aggregate Holdback, including interest accrued pursuant to Section 3.1(b), in excess of the aggregate dollar amount of Claims (as defined and described in Section 10.3) pending on the Holdback Release Date and (ii) such Stockholder’s Pro Rata Share. Upon written resolution and payment, if applicable, of any Claim pending on the Holdback Release Date, Buyer will immediately pay to each Stockholder, by wire transfer of immediately available funds to such account or accounts as such Stockholder will have identified in writing to Buyer prior to such payment, an amount equal to the product of (X) the amount of the Holdback, including interest accrued pursuant to Section 3.1(b), no longer required to be retained to cover any Claim pending on the Holdback Release Date; and (Y) such Stockholder’s Pro Rata Share.
