Common use of Payment of Holdback Amount Clause in Contracts

Payment of Holdback Amount. Purchaser shall hold and pay the -------------------------- Holdback Amount pursuant to Article IX and this Section 9.4. If Purchaser has not delivered an Indemnification Claim Notice to Seller on or before the first anniversary of the Closing Date, all of the Holdback Amount shall be paid promptly to Seller with interest thereon at the rate of five percent (5%) per annum from the Closing Date through the date of payment of the Holdback Amount. If Purchaser has delivered one or more Indemnification Claim Notices to Seller on or before the first anniversary of the Closing Date and has exercised its right of offset pursuant to Section 9.3(g), or has not then determined the appropriate amount to be offset, the following shall apply: (a) As promptly as practicable, but not later than ten (10) days following the first anniversary of the Closing Date, Purchaser shall prepare and deliver to Seller a written statement (the "Preliminary Holdback Accounting ------------------------------- Report") in reasonable detail which reflects and identifies, on an item-by-item ------ basis, (i) each Indemnification Claim paid by Purchaser and with respect to which Purchaser has exercised a right of offset against the Holdback Amount, and (ii) each unresolved Indemnification Claim and the portion of the Holdback Amount reasonably estimated by Purchaser to be required to cover each such unresolved Indemnification Claim, and the calculation reflecting how such amount was determined. (b) Seller may, within twenty (20) days after the date of its receipt of the Preliminary Holdback Accounting Report, deliver to Purchaser a certificate (signed by Seller) setting forth any objections to the portion(s) of the Holdback Amount which Purchaser estimates is required to cover any unresolved Indemnification Claim as set forth in the Preliminary Holdback Accounting Report, together with a summary of the reasons therefor and calculations which, in Seller's view, are necessary to eliminate such objections. With respect to any item included in the Preliminary Holdback Accounting Report to which Seller does not so object within such 20-day period, the Preliminary Holdback Accounting Report shall be final and binding as the "Final Holdback Accounting Report" with respect to such item(s) for purposes of --------------------------------- this Agreement. (c) With respect to any item included in the Preliminary Holdback Account Report to which Seller does object within such 20-day period, Purchaser and Seller shall use their respective reasonable best efforts to resolve within thirty (30) days by written agreement (the "Agreed Holdback Adjustment") any -------------------------- differences with respect to such item and, in the event Purchaser and Seller so resolve any such differences, the Preliminary Holdback Accounting Report with respect to such item, as further adjusted by the Agreed Holdback Adjustment, shall become the Final Holdback Accounting Report and shall be final and binding as to such items for purposes of this Agreement. (d) In the event any objection raised by Seller is not resolved by the Agreed Holdback Adjustment within the 30-day period referred to in subsection (c), then Seller and Purchaser shall submit the unresolved objection to arbitration pursuant to Section 10.12, and the Preliminary Holdback Accounting Report, as adjusted to give effect to the resolution of such objections, shall be deemed the Final Holdback Accounting Report. (e) The parties hereto shall make available to each other such books, records and other information (including work papers) as any of the foregoing may reasonably request to prepare or review the Preliminary Holdback Accounting Report. Purchaser shall pay to Seller promptly after the first anniversary of the Closing Date an amount equal to the Holdback Amount as reflected in the Final Holdback Accounting Report. The parties agree that offset against the Holdback Amount shall not be Purchaser's exclusive method of receiving indemnification from Seller pursuant to this Article IX.

Payment of Holdback Amount. Purchaser shall hold and pay the -------------------------- Holdback Amount pursuant to Article IX and this Section 9.4. If Purchaser has not delivered an Indemnification Claim Notice to Seller on or before the first anniversary of the Closing Date, all of the Holdback Amount shall be paid promptly to Seller with interest thereon at the rate of five percent (5%) per annum from the Closing Date through the date of payment of the Holdback Amount. If Purchaser has delivered one or more Indemnification Claim Notices to Seller on or before the first anniversary of the Closing Date and has exercised its right of offset pursuant to Section 9.3(g), or has not then determined the appropriate amount to be offset, the following shall apply: (a) As promptly as practicable, but not later than Within ten (10) days following the first anniversary Business Days of the Closing date on which 80% of the aggregate amount of all Shared Liabilities are Finally Settled (determined by reference to the aggregate estimate of Shared Liabilities set forth on Schedule 2.06(a) (the “Estimated Shared Liabilities”)) (such date, the “Final Settlement Reference Date”), Purchaser Buyer shall prepare and deliver pay to Seller a written statement in immediately available funds by wire transfer to an account designated by Seller an amount, if any, equal to: (the "Preliminary Holdback Accounting ------------------------------- Report"u) in reasonable detail which reflects and identifies, on an item-by-item ------ basis, (i) each Indemnification Claim paid by Purchaser and with respect to which Purchaser has exercised a right of offset against the Holdback Amount, plus (v) the Additional Holdback Amount, if any, minus (w) the aggregate amount paid in connection with the Final Settlement of Shared Liabilities as of the Final Settlement Reference Date, minus (x) the aggregate amount of third party professional and consulting fees and expenses within the scope of Seller’s responsibility under Schedule 2.06 incurred by Buyer in connection with the negotiation and settlement of any Shared Liability, plus (y) the aggregate amounts paid directly by Seller at the written direction of Buyer in connection with the Final Settlement of Shared Liabilities as of the Final Settlement Reference Date, minus (z) the estimated cost to settle the remaining Shared Liabilities (determined by Buyer in its reasonable judgment and in a manner consistent with Schedule 2.06 after considering the advice of a mutually agreed third party, which determination shall take into account (i) the percentage of the Estimated Shared Liabilities paid in connection with the Final Settlement of the Shared Liabilities Finally Settled as of the Final Settlement Reference Date, (ii) each unresolved Indemnification Claim the experience of Final Settlements entered into to prior to the time of determination as well as discussions with the counterparties that have not settled Shared Liabilities and (iii) other relevant factors) (the portion of the Holdback Amount reasonably estimated by Purchaser to be required to cover each such unresolved Indemnification Claim, and the calculation reflecting how such amount was determined“Pending Claims Amount”). (b) Seller mayOn each anniversary of the Final Settlement Reference Date until all Shared Liabilities have been Finally Settled, within twenty the Pending Claims Amount shall be recalculated by Buyer (20in accordance with the procedures described in Section 2.06(a)(z) days after above) and to the extent that the Pending Claims Amount as of the date of its receipt of determination is less than the Preliminary Holdback Accounting Report, deliver to Purchaser a certificate (signed by Seller) setting forth any objections to Pending Claims Amount calculated in connection with the portion(s) most recent disbursement of the Holdback Amount which Purchaser estimates is required and/or Additional Holdback Amount, Buyer shall pay to cover any unresolved Indemnification Claim as set forth Seller in immediately available funds by wire transfer to an account designated by Seller an amount, if any, equal to (x) the Preliminary Holdback Accounting ReportPending Claims Amount then being held by Buyer, together minus (y) the aggregate amount paid in connection with a summary the Final Settlement of Shared Liabilities after the reasons therefor and calculations which, in Seller's view, are necessary Final Settlement Reference Date or if later the most recent disbursement pursuant to eliminate such objections. With respect to any item included in the Preliminary Holdback Accounting Report to which Seller does not so object within such 20-day period, the Preliminary Holdback Accounting Report shall be final and binding as the "Final Holdback Accounting Report" with respect to such item(s) for purposes of --------------------------------- this Agreementparagraph (b). (c) With If (x) the payment in Section 2.06(a) has been made and (y) for a consecutive 36-month period (beginning no sooner than the Closing Date) the applicable counterparty to a Shared Liability (i) is no longer actively engaged in meaningful discussions regarding the settlement of such Shared Liability and (ii) has not commenced, or threatened to commence, any litigation or other proceeding regarding such Shared Liability (such Shared Liability, a “Dormant Shared Liability”), then Buyer shall pay to Seller in immediately available funds by wire transfer to an account designated by Seller an amount equal to the amount of such Dormant Shared Liability; provided, further, for the avoidance of doubt, that the payment of funds to Seller in respect of a Dormant Shared Liability pursuant to this Section 2.06(c) shall not restrict or impede Buyer’s ability to bring a claim against Seller in respect of such Dormant Shared Liability if the applicable counterparty initiates discussions, litigation or other proceedings regarding the settlement or calculation of such Dormant Shared Liability after the date on which any item included payments are made pursuant to this Section 2.06(c) in the Preliminary Holdback Account Report to which Seller does object within respect of such 20-day period, Purchaser and Seller shall use their respective reasonable best efforts to resolve within thirty (30) days by written agreement (the "Agreed Holdback Adjustment") any -------------------------- differences with respect to such item and, in the event Purchaser and Seller so resolve any such differences, the Preliminary Holdback Accounting Report with respect to such item, as further adjusted by the Agreed Holdback Adjustment, shall become the Final Holdback Accounting Report and shall be final and binding as to such items for purposes of this AgreementDormant Shared Liability. (d) In Within ten (10) Business Days of the event any objection raised date on which 100% of the Shared Liabilities set forth on Schedule 2.06(a) are Finally Settled, Buyer shall pay to Seller in immediately available funds by wire transfer to an account designated by Seller is not resolved an amount, if any, equal to (x) the Pending Claims Amount then being held by Buyer, minus (y) the Agreed Holdback Adjustment within aggregate amount paid in connection with the 30-day period referred to in subsection (c), then Seller and Purchaser shall submit Final Settlement of Shared Liabilities after the unresolved objection to arbitration Final Settlement Reference Date or if later the most recent disbursement pursuant to Section 10.12, and the Preliminary Holdback Accounting Report, as adjusted to give effect to the resolution of such objections, shall be deemed the Final Holdback Accounting Reportparagraph (b) above. (e) The parties hereto For purposes of this Agreement (i) a Shared Liability shall make available be deemed to each other be “Finally Settled” when (1) a legally binding final agreement providing for the full settlement and an express and unconditional release of all historical liabilities associated with such booksShared Liability is executed in accordance with the terms of this Agreement (subject to Buyer’s concurrence in writing that such agreement is legally binding on the counterparty and provides for a full settlement and an express and unconditional release of all historical liabilities associated with such Shared Liabilities, records and other information (including work papers) as any of the foregoing may reasonably request to prepare or review the Preliminary Holdback Accounting Report. Purchaser shall pay to Seller promptly after the first anniversary of the Closing Date an amount equal to the Holdback Amount as reflected in the Final Holdback Accounting Report. The parties agree that offset against the Holdback Amount which written concurrence shall not be Purchaser's exclusive method unreasonably withheld), or (2) the statute of receiving indemnification from Seller pursuant limitations applicable to this Article IXany claim arising out of or related to such Shared Liability has lapsed and (ii) the documentation evidencing the foregoing shall be referred to herein as a “Final Settlement”.

Payment of Holdback Amount. Purchaser For each Quarterly Period during the twelve-month period commencing on the first day of the Royalty Period (the twelve-month period commencing on the first day of the Royalty Period being the "Year One Royalty Period"), after delivery to Seller of the Royalty Statements for the Quarterly Period then ended, if Seller does not deliver a Notice of Dispute to Buyer by the tenth (10th) day following delivery of such Royalty Statements, or promptly after finalization of and agreement upon such Royalty Statements, if Seller does deliver a Notice of Dispute to Buyer by the tenth (10th) day following delivery of such Royalty Statements, Buyer shall hold pay to Seller an amount equal to ten percent (10.0%) of the Gross Sales of the SMT Business (the "Accrued Royalty") for the Quarterly Period then ended, less the sum of (x) the amounts that Buyer Indemnified Parties were entitled to recover for indemnification claims under Article VII hereof during the Quarterly Period then ended (subject to the terms and pay conditions of Article VII hereof) and (y) the -------------------------- Holdback Amount amounts of costs incurred in servicing warranty claims on behalf of Seller pursuant to Article IX Section 5.12 hereof during the Quarterly Period then ended (subject to the terms and conditions of Section 5.12 hereof) (the sum of clauses (x) and (y) for each Quarterly Period being the "Offset Amount" for each such Quarterly Period). In the event that the Offset Amount for the Quarterly Period then ended exceeds the Accrued Royalty for the Quarterly Period then ended, then Buyer may offset against the Accrued Royalty otherwise payable for the following Quarterly Period or Quarterly Periods during the Year One Royalty Period, in order beginning with the then immediately following Quarterly Period, the amount by which the Offset Amount for the Quarterly Period then ended exceeds the Accrued Royalty for the Quarterly Period then ended until such amount is satisfied by offset. In addition, on the date of payment to Seller of the Accrued Royalty for the last Quarterly Period during the Year One Royalty Period (or the date that the Accrued Royalty for such Quarterly Period would have been paid to Seller but for offset against the entire Accrued Royalty for such Quarterly Period in accordance with the terms and conditions of this Section 9.4. If Purchaser has not delivered an Indemnification Claim Notice 3.1(b)) (the "Holdback Distribution Date"), Buyer shall pay to Seller on or before the first anniversary of the Closing Date, all of an amount equal to the Holdback Amount, less the amount, if any, by which the aggregate Offset Amount shall be for the Year One Royalty Period exceeds the aggregate Accrued Royalty for the Year One Royalty Period, as reflected in the Royalty Statements for each Quarterly Period during the Year One Royalty Period, plus interest on the Holdback Amount, if any, paid promptly to Seller with interest thereon Seller, calculated at the a rate of five and one-half percent (55.5%) per annum annum, accruing from the Closing Date through the date of payment of Holdback Distribution Date; provided, however, that in the Holdback Amount. If Purchaser has delivered one or more Indemnification Claim Notices to Seller on or before event that the first anniversary of aggregate Offset Amount for the Closing Date and has exercised its right of offset pursuant to Section 9.3(g), or has Year One Royalty Period cannot then determined the appropriate amount to be offset, the following shall apply: (a) As promptly as practicable, but not later than ten (10) days following the first anniversary of the Closing Date, Purchaser shall prepare and deliver to Seller a written statement (the "Preliminary Holdback Accounting ------------------------------- Report") in reasonable detail which reflects and identifies, on an item-by-item ------ basis, (i) each Indemnification Claim paid satisfied by Purchaser and with respect to which Purchaser has exercised a right of offset against the Holdback Amountaggregate Accrued Royalty for the Year One Royalty Period, as reflected in the Royalty Statements for each Quarterly Period during the Year One Royalty Period, and the Holdback Amount pursuant to the terms and conditions of this subsection (ii), Buyer may satisfy such unsatisfied Offset Amounts pursuant to the terms of subsection (iii) each unresolved Indemnification Claim below. Buyer and Seller hereby agree that the Gross Sales of the SMT Business during the Stub Period shall be added to the Gross Sales of the SMT Business during the Quarterly Period commencing on the first day of the Royalty Period for purposes of computing the Accrued Royalty for such Quarterly Period commencing on the first day of the Royalty Period. Buyer shall reimburse Seller for all reasonable costs of collection and enforcing Seller's right to collect any undisputed portion of the Holdback Amount reasonably estimated by Purchaser in the event that Buyer fails to be required timely pay to cover each Seller such unresolved Indemnification Claim, and the calculation reflecting how such amount was determined. (b) Seller may, within twenty (20) days after the date of its receipt of the Preliminary Holdback Accounting Report, deliver to Purchaser a certificate (signed by Seller) setting forth any objections to the portion(s) undisputed portion of the Holdback Amount which Purchaser estimates when payment thereof is required to cover any unresolved Indemnification Claim as set forth in the Preliminary Holdback Accounting Report, together with a summary of the reasons therefor and calculations which, in Seller's view, are necessary to eliminate such objections. With respect to any item included in the Preliminary Holdback Accounting Report to which Seller does not so object within such 20-day period, the Preliminary Holdback Accounting Report shall be final and binding as the "Final Holdback Accounting Report" with respect to such item(s) for purposes of --------------------------------- this Agreementdue. (c) With respect to any item included in the Preliminary Holdback Account Report to which Seller does object within such 20-day period, Purchaser and Seller shall use their respective reasonable best efforts to resolve within thirty (30) days by written agreement (the "Agreed Holdback Adjustment") any -------------------------- differences with respect to such item and, in the event Purchaser and Seller so resolve any such differences, the Preliminary Holdback Accounting Report with respect to such item, as further adjusted by the Agreed Holdback Adjustment, shall become the Final Holdback Accounting Report and shall be final and binding as to such items for purposes of this Agreement. (d) In the event any objection raised by Seller is not resolved by the Agreed Holdback Adjustment within the 30-day period referred to in subsection (c), then Seller and Purchaser shall submit the unresolved objection to arbitration pursuant to Section 10.12, and the Preliminary Holdback Accounting Report, as adjusted to give effect to the resolution of such objections, shall be deemed the Final Holdback Accounting Report. (e) The parties hereto shall make available to each other such books, records and other information (including work papers) as any of the foregoing may reasonably request to prepare or review the Preliminary Holdback Accounting Report. Purchaser shall pay to Seller promptly after the first anniversary of the Closing Date an amount equal to the Holdback Amount as reflected in the Final Holdback Accounting Report. The parties agree that offset against the Holdback Amount shall not be Purchaser's exclusive method of receiving indemnification from Seller pursuant to this Article IX.

Payment of Holdback Amount. Purchaser Buyer shall hold and pay the -------------------------- Holdback Amount pursuant to Article IX and this Section 9.46.12. If Purchaser a Buyer Indemnitee has not timely delivered an Indemnification a Claim Notice pursuant to Seller Section 7.05 on or before prior to the first anniversary date that Buyer’s Parent receives a final copy of its audited financial statements for the Closing 2019 fiscal year (the “Buyer’s Parent 2019 Audit Date”), all fifty percent (50%) of the Holdback Amount shall be paid promptly to Seller with interest thereon at the rate of five percent Parties’ Representative within ten (5%10) per annum from the Closing Date through the date of payment Business Days of the Holdback AmountBuyer’s Parent 2019 Audit Date. If Purchaser one or more Buyer Indemnitees has timely delivered one or more Indemnification Claim Notices pursuant to Section 7.05 to Seller Parties’ Representative on or before the first anniversary of the Closing Date and has exercised its right of offset pursuant Buyer’s Parent 2019 Audit Date, Buyer shall pay to Section 9.3(g), or has not then determined the appropriate amount to be offset, the following shall apply: (a) As promptly as practicable, but not later than Seller within ten (10) days following the first anniversary Business Days of the Closing Date, Purchaser shall prepare and deliver to Seller a written statement Buyer’s Parent 2019 Audit Date fifty percent (the "Preliminary Holdback Accounting ------------------------------- Report") in reasonable detail which reflects and identifies, on an item-by-item ------ basis, (i) each Indemnification Claim paid by Purchaser and with respect to which Purchaser has exercised a right of offset against the Holdback Amount, and (ii) each unresolved Indemnification Claim and the portion of the Holdback Amount reasonably estimated by Purchaser to be required to cover each such unresolved Indemnification Claim, and the calculation reflecting how such amount was determined. (b) Seller may, within twenty (20) days after the date of its receipt of the Preliminary Holdback Accounting Report, deliver to Purchaser a certificate (signed by Seller) setting forth any objections to the portion(s50%) of the Holdback Amount which Purchaser estimates is required to cover less the amount of any unresolved Indemnification Claim as set forth in the Preliminary Holdback Accounting Report, together with a summary of the reasons therefor and calculations which, in Seller's view, are necessary to eliminate such objections. With respect to any item included in the Preliminary Holdback Accounting Report to which Seller does not so object within such 20-day period, the Preliminary Holdback Accounting Report shall be final and binding as the "Final Holdback Accounting Report" with respect reasonably estimated Losses related to such item(s) for purposes of --------------------------------- this Agreement. (c) With respect to any item included in the Preliminary Holdback Account Report to which Seller does object within such 20-day period, Purchaser and Seller shall use their respective reasonable best efforts to resolve within thirty (30) days by written agreement (the "Agreed Holdback Adjustment") any -------------------------- differences with respect to such item and, in the event Purchaser and Seller so resolve any such differences, the Preliminary Holdback Accounting Report with respect to such item, as further adjusted by the Agreed Holdback Adjustment, shall become the Final Holdback Accounting Report and shall be final and binding as to such items for purposes of this Agreement. (d) In the event any objection raised by Seller is outstanding Claim Notices. If a Buyer Indemnitee has not resolved by the Agreed Holdback Adjustment within the 30-day period referred to in subsection (c), then Seller and Purchaser shall submit the unresolved objection to arbitration timely delivered a Claim Notice pursuant to Section 10.12, and the Preliminary Holdback Accounting Report, as adjusted to give effect 7.05 on or prior to the resolution date that is eighteen (18) months after the Closing Date (the “18-Month Anniversary”), the remainder of such objections, the Holdback Amount shall be deemed paid to Seller Parties’ Representative within ten (10) Business Days of the Final Holdback Accounting Report. (e) The parties hereto shall make available 18-Month Anniversary. If one or more Buyer Indemnitees has timely delivered one or more Claim Notices pursuant to each other such books, records and other information Section 7.05 to Seller Parties’ Representative on or before the 18-Month Anniversary (including work papers) as any of Claim Notices delivered prior to the foregoing may reasonably request to prepare or review the Preliminary Holdback Accounting Report. Purchaser Buyer’s Parent 2019 Audit Date that remain outstanding), Buyer shall pay to Seller promptly after the first anniversary Parties’ Representative within ten (10) Business Days of the Closing Date an amount equal to 18-Month Anniversary the remainder of the Holdback Amount as reflected in less the Final amount of any reasonably estimated Losses related to all outstanding Claim Notices. If any claim related to a Claim Notice properly timely pursuant to Section 7.05 remains outstanding after the 18-Month Anniversary, upon any resolution of such pending claim, then such amount of the Holdback Accounting ReportAmount held related to the then resolved claim less the amount of such resolution validly due to a Buyer Indemnitee, shall be disbursed to the Seller Parties’ Representative within ten (10) Business Days of the final determination of the underlying claim. The parties Parties agree and acknowledge that offset against the Holdback Amount shall not be Purchaser's Buyer Indemnitees’ exclusive method of receiving indemnification from the Seller Parties pursuant to this Section 6.08 or Article IXVII.