Indemnity Holdback. A portion of the Purchase Price in the amount of $200,000 (the “Indemnity Holdback Amount”) shall be deposited by Parent into an account mutually agreed to by Shareholder and Parent at RBC Centura Bank or any other mutually agreeable financial institution (the “Holdback Account”). The Indemnity Holdback Amount shall be applied in accordance with the terms of this Agreement to pay amounts owing or payable under this Agreement by Shareholder to Parent with any remaining funds to be distributed to Shareholder. The Indemnity Holdback Amount shall be applied by Parent as follows:
(a) In the event of a claim for indemnification pursuant to Article VII of this Agreement by a Parent Indemnified Party hereunder (a “Claim”), Parent shall give Shareholder the Required Notice pursuant to Section 7.4 of this Agreement.
(b) In the event that (i) Shareholder shall not have furnished to Parent a written objection to the Required Notice within thirty (30) calendar days of receipt thereof or (ii) Shareholder shall have delivered to Parent, Shareholder’s written objection to the Required Notice and either (x) Shareholder and Parent shall have, subsequent to the giving of such notice, mutually agreed that Shareholder is obligated to indemnify the Parent Indemnified Parties for a specified amount or (y) Parent and Shareholder shall have received a final, non-appealable order of any court of competent jurisdiction (the “Court”) relating to the disposition of such Claim (a “Final Judgment”), Parent shall disburse to the Parent Indemnified Party the entire amount determined to be owed to the Parent Indemnified Part as set forth in the Required Notice, the Final Judgment, or as determined by mutual agreement of Parent and Shareholder, as the case may be.
(c) On March 31, 2008 (the “Initial Disbursement Date”), so long as there is no Claim then pending, Parent shall disburse one half of the Indemnity Holdback Amount (including any earnings thereon) to Shareholder. If there is a Claim pending on the Initial Disbursement Date, Parent shall disburse to Shareholder an amount equal to one-half of (i) the Indemnity Holdback Amount (including any earnings thereon) less (ii) the amount for which indemnification has been demanded in the applicable Required Notice.
(d) On March 31, 2009 (the “Final Disbursement Date”), so long as there is no Claim then pending, Parent shall disburse the remaining Indemnity Holdback Amount (including any earnings thereon) to Shareholder. If there is a Claim p...
Indemnity Holdback. Parent and the Company have selected Acquiom Clearinghouse LLC to act as escrow agent (the “Escrow Agent”) in connection with the Contemplated Transactions. Parent shall be fully responsible for the payment of escrow agent fees charged by the Escrow Agent pursuant to the Escrow Agreement. At Closing, Parent, Escrow Agent and the Principal Sellers shall enter into the Escrow Agreement, in substantially the form attached hereto as Exhibit H, and Parent shall withhold from the Principal Sellers and deposit into an account maintained by the Escrow Agent, for a period of 15 months following the Closing Date, 150,000 Parent Shares of the Merger Consideration payable to the Principal Sellers pursuant to this Agreement (the “Indemnity Holdback Shares”) as security for the satisfaction of the Principal Sellers’ indemnification obligations, if any, under Section 6. The Escrow Agent shall disburse the Indemnity Holdback Shares, subject to the terms and conditions of the Escrow Agreement and any valid indemnity claims, as follows:
(a) On the date which is the 15-month anniversary of the Closing Date (the “Holdback Release Date”), the Escrow Agent shall deliver to the Principal Sellers (in accordance with their respective percentage interests in the Indemnity Holdback Shares), the remaining amount of Parent Shares, if any, less a portion reserved for all such then-pending indemnity claims of Parent or a Parent Indemnified Person. Following the Holdback Release Date, upon final resolution of all pending indemnity claims, the Escrow Agent shall deliver to the Principal Sellers (in accordance with their respective percentage interests in the Indemnity Holdback Shares), the remaining amount of Parent Shares, if any, of the Indemnity Holdback Shares.
(b) Notwithstanding anything in this Agreement that may be construed to the contrary:
(i) Parent shall have the right to instruct the Escrow Agent to retain a portion of the Indemnity Holdback Shares reserved for a pending indemnity claim of Parent or a Parent Indemnified Person until such indemnity claim is resolved.
(ii) In the event that a Principal Seller is responsible for a Loss before the Holdback Release Date, then all releases pursuant to Section 1.9(a) shall be made to (1) the Principal Seller who is not responsible for a Loss in accordance with such Principal Seller’s respective percentage interest in the Indemnity Holdback Shares; and (ii) to the Principal Seller who is responsible for a Loss in accordance with such...
Indemnity Holdback. The Purchaser shall pay to the Escrow Agent, by wire transfer of immediately available funds to the account(s) specified by the Escrow Agent to the Purchaser, an amount equal to $[**] ($[**] of which constitutes one half of the retention under the R&W Policy) (the “Indemnity Holdback”). The Indemnity Holdback shall be held, invested and disbursed as specified in this Agreement and the Escrow Agreement; provided that any funds remaining with respect to the Indemnity Holdback on the day that is [**] after the Closing Date, which are not subject to a Claim made pursuant to this Agreement prior to such date, shall be disbursed by the Paying Agent to the Vendors within two (2) Business Days of such date; and
Indemnity Holdback. The Indemnity Holdback Shares (which shall include for purposes of this SECTION 11.7 any distributions accrued or made thereon after the date of this Agreement), the net proceeds of any sale of Indemnity Holdback Shares and any other securities or property which may be issued after the date hereof in exchange for such shares in any merger or recapitalization or similar transaction involving BCC) shall be deemed as of the Effective Time to be deposited by the Escrow Stockholders and Purchaser with the Escrow Agent, and certificates representing the Indemnity Holdback Shares shall be held by the Escrow Agent. The Escrow Stockholders shall deliver to the Escrow Agent at the Closing the Indemnity Escrow Agreement, appropriate stock powers endorsed in blank and such other documentation as the Escrow Agent may reasonably prescribe to carry out the purposes of this SECTION 11.7 So long as any Indemnity Holdback Shares are held by the Escrow Agent hereunder, BCC shall have, and the Escrow Stockholders by execution and/or approval of this Agreement hereby grant, effective as of the Effective Time, a perfected, first priority security interest in such Indemnity Holdback Shares to secure payment of amounts payable by the Escrow Stockholders in respect of claims under this ARTICLE 11. In connection therewith, the Escrow Stockholders shall execute and deliver such instruments as BCC or the Escrow Agent may from time to time reasonably request for the purpose of evidencing and perfecting such security interest.
Indemnity Holdback. Upon Vertex Ohio’s payment of the principal balance owing by Vertex Ohio under that certain promissory note in the principal amount of Five Million One Hundred Fifty Thousand Dollars ($5,150,000.00) made payable to Seller by Vertex Ohio (“Ohio Note”), Seller agrees to set aside an amount of the proceeds of the Ohio Note equal to Seller’s Indemnity Cap in an escrow account with Fidelity National Financial, Inc., or one of its affiliates (the “Indemnity Holdback”). The Indemnity Holdback shall be held in escrow until the expiration of the indemnity obligation set forth in Section 6.1(iii), above, at which point any remaining portion of the Indemnity Holdback shall be released to Seller. Subject to the provisions of this Agreement, Seller shall cause such escrow agent to pay to a Buyer Indemnified Party any amount of the Indemnity Holdback determined to be due under this Agreement upon a final and non-appealable judgment, determination, settlement or compromise of the Sxxxxxxxx Action in connection with a claim for Losses related to the Sxxxxxxxx Action by a Buyer Indemnified Party. Buyer and Seller agree that any amount of indemnifiable Losses related to the Sxxxxxxxx Action that is not in dispute, or with respect to which the dispute is fully and finally resolved, shall be paid promptly upon notice of such indemnifiable Losses or upon resolution of such dispute as described above, as applicable. Buyer and Seller hereby agree to promptly execute escrow instructions acceptable to Fidelity National Financial, Inc., or one of its affiliates, effectuating the provisions of this Section 6.2 promptly after the Closing.
Indemnity Holdback. In seeking indemnification to which the Purchaser Indemnified Parties are entitled under Articles 8 and 9 of this Agreement, other than with respect to Special Claims, the exclusive remedy of the Purchaser Indemnified Parties shall be the right to set off any and all amounts for which Seller is required to indemnify a Purchaser Indemnified Party pursuant to Section 8.1 above against any amounts to be paid to Seller out of the Indemnity Holdback Amount pursuant to the Escrow Agreement, provided that notice of a claim for indemnification is given by Purchaser under Section 8.6 below and the notice specifies that payment will be sought in part or in whole as an offset. Neither the exercise of nor the failure to give a claim notice under Section 8.6 which seeks an offset shall constitute an election of remedies or limit Purchaser in any manner in the enforcement of any other remedies that may be available to Purchaser with respect to Special Claims, whether under this Agreement, under any other of the Seller Agreements or under law or in equity. If the amount of such Loss is not fully liquidated at the time the claim for indemnification is made, then the amount being claimed as an offset shall continue to be held by the Escrow Agent until the earlier of the date when (i) Seller and Purchaser mutually agree upon the use and disposition of the offset funds, or (ii) the amount of the Loss is fully liquidated. As used in this Section 8.2, a third party claim shall not be considered liquidated until it has been finally resolved, whether by settlement or compromise, negotiation, final judgment (including all appeals) or otherwise in accordance with the procedures set forth in Section 8.6 below. On the date one (1) year after the Closing Date, Escrow Agent shall pay to Seller by wire transfer the remaining balance of the Indemnity Holdback Amount, provided the aggregate amounts of all “Disputed Claims” and the amounts of any then-current “Demands” (as such terms are defined in the Escrow Agreement) shall continue to be held by the Escrow Agent and subsequently paid to Purchaser and/or Seller in accordance with the terms of the Escrow Agreement. All interest and/or income accrued on the Indemnity Holdback Amount shall be paid by Escrow Agent to Seller.
Indemnity Holdback. 26 SECTION 7.06. Indemnity Payments Reduced by Insurance Proceeds...........................................27 SECTION 7.07. Exclusive Remedy...........................................................................27 ARTICLE VIII
Indemnity Holdback. (a) The Buyer shall retain, for the benefit of the Sellers and Payees, $1,500,000 (the "Indemnity Holdback Amount"). The Company, the Buyer and the Sellers agree that the Indemnity Holdback Amount will be available, as provided in this Article XI, to satisfy the indemnification obligations pursuant to Sections 11.2(g) and 11.2(h) of this Agreement. The Buyer acknowledges that it is holding the Indemnity Holdback Amount for the benefit of the Payees and Sellers solely for the purposes of the indemnity obligations set forth in Sections 11.2(g) and 11.2(h) hereof.
(b) Subject to the following requirements:
(i) $1,000,000 of the Indemnity Holdback Amount shall be held by the Buyer until the earlier to occur of (i) final settlement or judgment of the claims or actions, if any, described under Section 11.2(g) hereof or (ii) the expiration of the applicable statute of limitations related to all claims or actions described under Section 11.2(g) hereof; and
(ii) $500,000 of the Indemnity Holdback Amount shall be held by the Buyer until the earlier to occur of (i) final settlement or judgment of the claims or actions, if any, described under Section 11.2(h) hereof or (ii) the expiration of the applicable statute of limitations related to all claims or actions described under Section 11.2(h) hereof. The remaining balance of the portion of the Indemnity Holdback Amount held by Buyer and not used to pay any Damages related to all claims, actions or settlements related to the indemnification obligations set forth in Sections 11.2(g) or 11.2(h), respectively, shall be delivered promptly by Buyer to each of the Sellers and Payees, in cash, by bank cashiers, certified check (or company checks of Buyer in the case of Payee's) or wire transfer, pursuant to their respective Cash Participating Percentages.
Indemnity Holdback. L-P Engineered Wood shall deduct from the Estimated Residual Xxxxx Asset Purchase Price and deliver to the Escrow Agent the sum of US $1,000,000 (the "Indemnity Holdback") to be held by the Escrow Agent pursuant to the Escrow Agreement.
Indemnity Holdback. The Escrow Agent shall hold the Indemnity Holdback pursuant to the terms of the Escrow Agreement as security for the Vendors' obligations set out in Section 9.1. If the Purchaser has not provided written notice to the Vendors and the Escrow Agent by August 31, 2007 setting out in reasonable detail the basis for a claim for indemnification pursuant to Section 9.1, one-half of the Indemnity Holdback (plus all accrued interest thereon) shall be released by the Escrow Agent to the Vendors. The balance of the Indemnity Holdback (together with accrued interest thereon) shall be released by the Escrow Agent to the Vendors on March 31, 2008 provided the Purchaser has not made a claim against the Vendors for indemnification pursuant to Section 9.1. The Purchase Price set out in Section 2.2 shall be increased by the amount of the Indemnity Holdback, if any, that is released to the Vendors pursuant to this Section.
