Common use of PAYMENT; GENERAL RIGHT OF OFFSET Clause in Contracts

PAYMENT; GENERAL RIGHT OF OFFSET. The Indemnifying Parties shall promptly pay to the Indemnified Party in cash the amount of any Adverse Consequences to which such Indemnified Party becomes entitled by reason of the provisions of Section 2 or Section 8 of this Agreement. Notwithstanding the foregoing, in connection with the indemnification of Buyer pursuant to Section 8(b)(i), Section 8(b)(iii), Section 8(b)(iv) or Section 8(b)(v), (i) Buyer shall have the option (at Buyer's sole discretion) to first seek indemnification payments through offset against the Escrow Sum after an indemnification claim has been made therefor, for the amount of any Adverse Consequences or any other payments to which Buyer becomes entitled by reason of the provisions of this Agreement and (ii) any one or more of the Sellers shall have the option to satisfy such Seller's obligation to the Buyer under Section 8(b) by surrendering to Buyer that portion of the Stock Portion of the Purchase Price required to fund that obligation (with such surrendered Stock valued at the lesser of (A) such Stock's then-current fair market value or (B) the value stated in Section 2(h)). Furthermore, and in lieu of receiving a cash payment from the Sellers, Buyer, in its sole discretion, may after the first anniversary of the Closing Date elect to offset against any Earned Payout Amount payable to Sellers, after an indemnification claim has been made therefor, the amount of any Adverse Consequences or any other payments to which Buyer may become entitled to by reason of the provisions of this Agreement. In the event that Buyer offsets more than the amount of any Adverse Consequences (as finally determined), Buyer shall be responsible to Sellers for such sums which should not have been subject to an offset, together with interest at the prime rate of Bank Boston, N.A.

PAYMENT; GENERAL RIGHT OF OFFSET. The Indemnifying Parties shall promptly pay to the Indemnified Party as may be entitled to indemnity hereunder in cash the amount of any Adverse Consequences to which such Indemnified Party becomes may become entitled to by reason of the provisions of Section 2 or Section 8 of this Agreement. Such amount of Adverse Consequences shall be due and payable upon the earlier of (i) 30 days after written notice of an indemnification claim by the Indemnified Party and such claim has not been disputed by the Indemnifying Parties or their representatives (in the case of Sellers) in writing; (ii) 10 days after Indemnifying Parties' have agreed in writing that such amount of Adverse Consequences is their obligation; and (iii) 10 days after written notice of an order from the arbitrator(s) retained in accordance with Section 8(h) below requiring the Indemnified Parties to pay such amount to the Indemnified Party. Notwithstanding the foregoing, in connection with the indemnification of Buyer pursuant to Section 8(b)(i), Section 8(b)(iii), Section 8(b)(iv) or Section 8(b)(v), (i) Buyer shall have the option (at Buyer's sole discretion) to first seek indemnification payments through offset against the Escrow Sum Contingent Cash Payment and the Earned Payout Amount, after an indemnification claim has been made therefor, for the amount of any Adverse Consequences or any other payments to which Buyer becomes may become entitled to by reason of the provisions of this Agreement and (ii) any one or more of the Sellers shall have the option to satisfy such Seller's obligation to the Buyer under Section 8(b) by surrendering to Buyer that portion of the Stock Portion of the Purchase Price required to fund that obligation (with such surrendered Stock valued at the lesser greater of (A) such Stock's then-current then fair market value (as determined in good faith by the Buyer's Board of Directors) or (B) the value stated in Section 2(h)). Furthermore, and in lieu of receiving a cash payment from the Sellers, Buyer, in its sole discretion, may after the first anniversary of the Closing Date elect to offset against any Earned Payout Amount payable to Sellers, after an indemnification claim has been made therefor, the amount of any Adverse Consequences or any other payments to which Buyer may become entitled to by reason of the provisions of this Agreement. In the event that Buyer offsets more than the amount of any Adverse Consequences (as finally determined), Buyer shall be responsible to Sellers for such sums which should not have been subject to an offset, together with interest at the prime rate of Bank Boston, N.A..

PAYMENT; GENERAL RIGHT OF OFFSET. The In accordance with this SECTION 8.6, the Indemnifying Parties shall promptly pay to the Indemnified Party as may be entitled to indemnity hereunder in cash the amount of any Adverse Consequences to which such Indemnified Party becomes may become entitled to by reason of the provisions of Section ARTICLES 2 or Section 8 of this Agreement. Notwithstanding the foregoing, in connection with the indemnification of Buyer pursuant to Section 8(b)(i)SECTION 8.2, Section 8(b)(iii), Section 8(b)(iv) or Section 8(b)(v), (i) Buyer shall have the option (at Buyer's sole discretion) to first seek indemnification payments through offset against the Escrow Sum Escrowed Portion of the Purchase Price until exhausted and then against the Sellers, severally and not jointly after an indemnification claim has been made therefor, for the amount of any Adverse Consequences or any other payments to which Buyer becomes entitled by reason of the provisions of this Agreement and (ii) any one or more of the Sellers shall have the option to satisfy such Seller's obligation to the Buyer under Section 8(b) by surrendering to Buyer that portion of the Stock Portion of the Purchase Price required to fund that obligation (with such surrendered Stock valued at the lesser of (A) such Stock's then-current fair market value or (B) the value stated in Section 2(h)). Furthermore, and in lieu of receiving a cash payment from the Sellers, Buyer, in its sole discretion, may after the first anniversary of the Closing Date elect to offset against any Earned Payout Amount payable to Sellers, after an indemnification claim has been made therefor, the amount of any Adverse Consequences or any other payments to which Buyer may become entitled to by reason of the provisions of this Agreement or the Escrow Agreement. In ; PROVIDED, HOWEVER, that the event aggregate liability of each Seller hereunder shall not exceed the lesser of (x) such Seller's pro-rata share of $8,000,000 (based on their respective share of the Sellers' aggregate equity interest in triSpan) or (y) the Purchase Price received by him or it; PROVIDED, FURTHER, HOWEVER, that Buyer offsets more than the amount liability of any Adverse Consequences Seller under this Agreement shall not exceed a percentage of the aggregate indemnifiable claims equal to his or its pro rata share of such claims; and, PROVIDED, FINALLY, HOWEVER, that Sellers, may, in their sole discretion, deliver Buyer Shares, including unregistered Buyer Shares (as finally determinedvalued at the Fair Market Price at Closing of Buyer's Shares), Buyer shall be responsible to Sellers for as payment in satisfaction of such sums which should not have been subject to an offset, together with interest at the prime rate of Bank Boston, N.A.liabilities.