Common use of Indemnity Holdback Clause in Contracts

Indemnity Holdback. (a) In the event that Closing occurs, the Escrow Agent shall hold in escrow in a separate segregated account, in accordance with the terms of the Escrow Agreement, an amount equal to twenty percent (20%) of the Unadjusted Purchase Price (the “Initial Holdback Amount” and as may be reduced pursuant to this Section 11.7, the “Holdback Amount”). If Purchaser delivers a Claim Notice on or before the end of the Initial Holdback Deadline or the Final Holdback Deadline, as applicable, and Sellers do not dispute such claim, Purchaser shall be entitled to indemnification by the Sellers in accordance with ARTICLE 11, including the right to receive from the Holdback Amount funds in an amount equal to the amount of the indemnity claim for which Purchaser is entitled under this ARTICLE 11. If, however, Sellers dispute any such claim, Purchaser shall not be entitled to receive any amount from the Holdback Amount with respect to such claim prior to final non-appealable judgment or final settlement with respect to such dispute. To the extent there exists any indemnity claim pursuant to ARTICLE 11 that is subject to a valid Claim Notice, but not satisfied in full by Sellers prior to the expiration of the Initial Holdback Deadline or the Final Holdback Deadline, as applicable, an amount equal to the maximum possible amount of such claim or claims reasonably believed by the parties hereto to be due or likely to be due hereunder (or, in the event of a dispute between the parties with respect thereto, the higher of the two estimates) will be withheld from the remaining Holdback Amount and will continue to be held until such claim or claims have been fully resolved pursuant to a final non-appealable judgment or final settlement with respect to such dispute.

Indemnity Holdback. The "Holdback" shall consist of Two Million Dollars (a) In the event that Closing occurs, the Escrow Agent shall hold in escrow in a separate segregated account, in accordance with the terms of the Escrow Agreement, an amount equal to twenty percent (20%$2,000,000) of the Unadjusted Purchase Price Merger Consideration to be withheld by the Parent at the Closing and, to the extent all or any portion of the Holdback becomes payable to the Caroderm shareholders pursuant to the provisions of this Section 7.3.3, shall be paid to the Caroderm shareholders, on a pro rata basis, as an element of the Merger Consideration. Nothing contained in this Agreement shall be construed to limit any rights of the Parent Indemnified Parties for full indemnification or otherwise against any Caroderm shareholder severally with respect to the failure of such Caroderm shareholder to have good, valid and marketable title to any Caroderm Shares held by holder as represented herein, free and clear of all Liens or to have the full right, capacity and authority to vote all of such Caroderm Shares in favor of the Merger and any other transaction contemplated by this Agreement; provided that in no event shall any Caroderm shareholder have liability to the Parent Indemnified Parties for Losses in excess of the Merger Consideration payable to such Caroderm shareholder. On expiration of one year from the date hereof, One Million Dollars ($1,000,000) of the “Initial Holdback less any (i) amounts used to compensate a Parent Indemnified Party as provided in this Article VII and (ii) amounts constituting a Reserve Amount at such time, shall be distributed to the Caroderm shareholders, pro rata in proportion to the amount each was entitled to receive of the Merger Consideration. On expiration of the Survival Period, all remaining amounts in the Holdback that have not been used to compensate a Parent Indemnified Party as provided in this Article VII or which do not constitute a Reserve Amount” , shall be distributed to the Caroderm shareholders, pro rata in proportion to the amount each was entitled to receive of the Merger Consideration. Notwithstanding the foregoing, if, prior to the first anniversary of the Closing Date, the Shareholders shall have delivered to Purchaser from each of the holders of Caroderm Shares a consent to the Merger (in the form delivered by the Shareholders to Purchaser in connection with the approval of the Merger), then, on the first anniversary of the Closing Date, the entire Holdback, less any (i) amounts used to compensate a Parent Indemnified Party as provided in this Article VII and (ii) amounts constituting a Reserve Amount at such time, shall be distributed to the Caroderm shareholders. On resolution of the claim underlying any Reserve Amount or on expiration of Survival Period without a formal proceeding having been filed against the Parent Indemnified Parties with respect to the underlying claim, any Reserve Amounts shall be distributed to the shareholders of Caroderm in the same proportion as may set forth above. On any distribution from the Holdback, interest or other earnings accrued on the Holdback amount shall be reduced allocated between Parent and the shareholders of Caroderm based on the respective portions of the Holdback amount otherwise received by them pursuant to this Section 11.7section. Notwithstanding the foregoing, the “Holdback Amount”). If Purchaser delivers any two or more Caroderm shareholders may agree to allocate as between themselves any payments to be received by such shareholders from Parent and Parent shall make payment according to such allocation if Parent is instructed to do so in a Claim Notice on or before the end of the Initial Holdback Deadline or the Final Holdback Deadline, as applicable, and Sellers do not dispute such claim, Purchaser shall be entitled to indemnification writing signed by the Sellers Caroderm shareholders in accordance with ARTICLE 11, including the right to receive from the Holdback Amount funds in an amount equal to the amount of the indemnity claim for which Purchaser is entitled under this ARTICLE 11. If, however, Sellers dispute any such claim, Purchaser shall not be entitled to receive any amount from the Holdback Amount with respect to such claim prior to final non-appealable judgment or final settlement with respect to such dispute. To the extent there exists any indemnity claim pursuant to ARTICLE 11 that is subject to a valid Claim Notice, but not satisfied in full by Sellers prior to the expiration of the Initial Holdback Deadline or the Final Holdback Deadline, as applicable, an amount equal to the maximum possible amount of such claim or claims reasonably believed by the parties hereto to be due or likely to be due hereunder (or, in the event of a dispute between the parties with respect thereto, the higher of the two estimates) will be withheld from the remaining Holdback Amount and will continue to be held until such claim or claims have been fully resolved pursuant to a final non-appealable judgment or final settlement with respect to such disputequestion.

Indemnity Holdback. (a) In seeking indemnification to which the event 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 Closing occursnotice 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 hold not be considered liquidated until it has been finally resolved, whether by settlement or compromise, negotiation, final judgment (including all appeals) or otherwise in escrow accordance with the procedures set forth in a separate segregated accountSection 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, an amount equal to twenty percent (20%) of . All interest and/or income accrued on the Unadjusted Purchase Price (the “Initial Indemnity Holdback Amount” and as may be reduced pursuant to this Section 11.7, the “Holdback Amount”). If Purchaser delivers a Claim Notice on or before the end of the Initial Holdback Deadline or the Final Holdback Deadline, as applicable, and Sellers do not dispute such claim, Purchaser Amount shall be entitled paid by Escrow Agent to indemnification by the Sellers in accordance with ARTICLE 11, including the right to receive from the Holdback Amount funds in an amount equal to the amount of the indemnity claim for which Purchaser is entitled under this ARTICLE 11. If, however, Sellers dispute any such claim, Purchaser shall not be entitled to receive any amount from the Holdback Amount with respect to such claim prior to final non-appealable judgment or final settlement with respect to such dispute. To the extent there exists any indemnity claim pursuant to ARTICLE 11 that is subject to a valid Claim Notice, but not satisfied in full by Sellers prior to the expiration of the Initial Holdback Deadline or the Final Holdback Deadline, as applicable, an amount equal to the maximum possible amount of such claim or claims reasonably believed by the parties hereto to be due or likely to be due hereunder (or, in the event of a dispute between the parties with respect thereto, the higher of the two estimates) will be withheld from the remaining Holdback Amount and will continue to be held until such claim or claims have been fully resolved pursuant to a final non-appealable judgment or final settlement with respect to such disputeSeller.

Indemnity Holdback. (a) In the event that Closing occurs, the Escrow Agent shall hold in escrow in a separate segregated account, in accordance with the terms of the Escrow Agreement, an amount equal to twenty percent (20%) of the Unadjusted Purchase Price (the “Initial Holdback Amount” and as may be reduced pursuant to this Section 11.7, the “Holdback Amount”). If Purchaser delivers a Claim Notice on or before the end of the Initial Holdback Deadline or the Final Holdback Deadline, as applicable, and Sellers do not dispute such claim, Purchaser shall be entitled to indemnification by the Sellers in accordance with ARTICLE 11, including the right to receive from the Holdback Amount funds in an amount equal to the amount of the indemnity claim for which Purchaser is entitled under this ARTICLE 11. If, however, Sellers Xxxxxxx dispute any such claim, Purchaser shall not be entitled to receive any amount from the Holdback Amount with respect to such claim prior to final non-non- appealable judgment or final settlement with respect to such dispute. To the extent there exists any indemnity claim pursuant to ARTICLE 11 that is subject to a valid Claim Notice, but not satisfied in full by Sellers prior to the expiration of the Initial Holdback Deadline or the Final Holdback Deadline, as applicable, an amount equal to the maximum possible amount of such claim or claims reasonably believed by the parties hereto to be due or likely to be due hereunder (or, in the event of a dispute between the parties with respect thereto, the higher of the two estimates) will be withheld from the remaining Holdback Amount and will continue to be held until such claim or claims have been fully resolved pursuant to a final non-non- appealable judgment or final settlement with respect to such dispute.

Indemnity Holdback. The “Holdback” shall consist of Two Million Dollars (a) In the event that Closing occurs, the Escrow Agent shall hold in escrow in a separate segregated account, in accordance with the terms of the Escrow Agreement, an amount equal to twenty percent (20%$2,000,000) of the Unadjusted Purchase Price Merger Consideration to be withheld by the Parent at the Closing and, to the extent all or any portion of the Holdback becomes payable to the Caroderm shareholders pursuant to the provisions of this Section 7.3.3, shall be paid to the Caroderm shareholders, on a pro rata basis, as an element of the Merger Consideration. Nothing contained in this Agreement shall be construed to limit any rights of the Parent Indemnified Parties for full indemnification or otherwise against any Caroderm shareholder severally with respect to the failure of such Caroderm shareholder to have good, valid and marketable title to any Caroderm Shares held by holder as represented herein, free and clear of all Liens or to have the full right, capacity and authority to vote all of such Caroderm Shares in favor of the Merger and any other transaction contemplated by this Agreement; provided that in no event shall any Caroderm shareholder have liability to the Parent Indemnified Parties for Losses in excess of the Merger Consideration payable to such Caroderm shareholder. On expiration of one year from the date hereof, One Million Dollars ($1,000,000) of the “Initial Holdback less any (i) amounts used to compensate a Parent Indemnified Party as provided in this Article VII and (ii) amounts constituting a Reserve Amount at such time, shall be distributed to the Caroderm shareholders, pro rata in proportion to the amount each was entitled to receive of the Merger Consideration. On expiration of the Survival Period, all remaining amounts in the Holdback that have not been used to compensate a Parent Indemnified Party as provided in this Article VII or which do not constitute a Reserve Amount” , shall be distributed to the Caroderm shareholders, pro rata in proportion to the amount each was entitled to receive of the Merger Consideration. Notwithstanding the foregoing, if, prior to the first anniversary of the Closing Date, the Shareholders shall have delivered to Purchaser from each of the holders of Caroderm Shares a consent to the Merger (in the form delivered by the Shareholders to Purchaser in connection with the approval of the Merger), then, on the first anniversary of the Closing Date, the entire Holdback, less any (i) amounts used to compensate a Parent Indemnified Party as provided in this Article VII and (ii) amounts constituting a Reserve Amount at such time, shall be distributed to the Caroderm shareholders. On resolution of the claim underlying any Reserve Amount or on expiration of Survival Period without a formal proceeding having been filed against the Parent Indemnified Parties with respect to the underlying claim, any Reserve Amounts shall be distributed to the shareholders of Caroderm in the same proportion as may set forth above. On any distribution from the Holdback, interest or other earnings accrued on the Holdback amount shall be reduced allocated between Parent and the shareholders of Caroderm based on the respective portions of the Holdback amount otherwise received by them pursuant to this Section 11.7section. Notwithstanding the foregoing, the “Holdback Amount”). If Purchaser delivers any two or more Caroderm shareholders may agree to allocate as between themselves any payments to be received by such shareholders from Parent and Parent shall make payment according to such allocation if Parent is instructed to do so in a Claim Notice on or before the end of the Initial Holdback Deadline or the Final Holdback Deadline, as applicable, and Sellers do not dispute such claim, Purchaser shall be entitled to indemnification writing signed by the Sellers Caroderm shareholders in accordance with ARTICLE 11, including the right to receive from the Holdback Amount funds in an amount equal to the amount of the indemnity claim for which Purchaser is entitled under this ARTICLE 11. If, however, Sellers dispute any such claim, Purchaser shall not be entitled to receive any amount from the Holdback Amount with respect to such claim prior to final non-appealable judgment or final settlement with respect to such dispute. To the extent there exists any indemnity claim pursuant to ARTICLE 11 that is subject to a valid Claim Notice, but not satisfied in full by Sellers prior to the expiration of the Initial Holdback Deadline or the Final Holdback Deadline, as applicable, an amount equal to the maximum possible amount of such claim or claims reasonably believed by the parties hereto to be due or likely to be due hereunder (or, in the event of a dispute between the parties with respect thereto, the higher of the two estimates) will be withheld from the remaining Holdback Amount and will continue to be held until such claim or claims have been fully resolved pursuant to a final non-appealable judgment or final settlement with respect to such disputequestion.

Indemnity Holdback. (a) In the event that Closing occurs, the Escrow Agent shall hold in escrow in a separate segregated account, in accordance with the terms of the Escrow Agreement, an amount equal to twenty percent (20%) of the Unadjusted Purchase Price (the “Initial Holdback Amount” and as may be reduced pursuant to this Section 11.7, the “Holdback Amount”). If Purchaser delivers a Claim Notice on or before the end of the Initial Holdback Deadline or the Final Holdback Deadline, as applicable, and Sellers do not dispute such claim, Purchaser shall be entitled to indemnification by the Sellers in accordance with ARTICLE 11, including the right to receive from the Holdback Amount funds in an amount equal to the amount of the indemnity claim for which Purchaser is entitled under this ARTICLE 11. If, however, Sellers dispute any such claim, Purchaser shall not be entitled to receive any amount from the Holdback Amount with respect to such claim prior to final non-non- appealable judgment or final settlement with respect to such dispute. To the extent there exists any indemnity claim pursuant to ARTICLE 11 that is subject to a valid Claim Notice, but not satisfied in full by Sellers prior to the expiration of the Initial Holdback Deadline or the Final Holdback Deadline, as applicable, an amount equal to the maximum possible amount of such claim or claims reasonably believed by the parties hereto to be due or likely to be due hereunder (or, in the event of a dispute between the parties with respect thereto, the higher of the two estimates) will be withheld from the remaining Holdback Amount and will continue to be held until such claim or claims have been fully resolved pursuant to a final non-non- appealable judgment or final settlement with respect to such dispute.