Purchaser’s Right of Offset. (a) Purchaser may defer the payment to Sellers of a part of the amount payable pursuant to Section 1.8 equal to the excess, if any, of the aggregate amount under dispute pursuant to claims made by Purchaser under ARTICLE VIII over the sum of (i) Escrow Amount plus (ii) sixty percent (60%) of the Holdback Amount (after reduction for any payment received with respect to previous claims and any Purchase Price reduction arising as a result of a Retention Breach) and until such time as (X) the disputes pending as of the Earn-Out Payment Date have been finally resolved (whether by a settlement agreement among the parties or by a binding decision (“décision exécutoire”) rendered pursuant to Section 10.8) or (Y) until the aggregate amount under dispute has been reduced to a level equal to or less than the available balance in (i) the Escrow Account plus (ii) sixty percent (60%) of the Holdback Amount (after reduction for any Holdback reduction with respect to any previous claims and any Purchase Price reduction arising as a result of a Retention Breach) as determined for the Parties by the Escrow Agent. Purchaser shall have the right to offset any payment obligation Purchaser may have pursuant to Section 1.8 to any Seller by the aggregate amount by which any amount finally determined to be due to Purchaser or to Purchaser Indemnified Persons by any and all Sellers pursuant to this Agreement exceeds the amounts available and paid to Purchaser by the Escrow Agent out of the Escrow Amount. Any remaining balance of Purchaser’s payment obligation pursuant to Section 1.8 shall be paid to each Seller in accordance with the instructions provided by the Sellers’ Representative.
(b) For the avoidance of doubt, except as provided in Section 8.2(c) and except for (i) instances of fraud, dol or any right of off-set provided by law, and (ii) the Purchaser’s right of off-set with the Earn-Out Amount as provided for in this Section, the foregoing paragraph shall not create any payment obligation for any of the Sellers (except the Selling Executives) above the Escrow Amount or, with respect to the Selling Executives, above sixty percent (60%) of the Holdback Amount (after reduction for any Holdback reduction with respect to any previous claims and any Purchase Price reduction arising as a result of a Retention Breach), so that no Seller may be required to pay to Purchaser and/or to Purchaser Indemnified Persons any amount, either in cash or in shares of Purchaser Common Stock, tha...
Purchaser’s Right of Offset. Purchaser shall be entitled to credit or offset against any amount due the Sellers or the Shareholders pursuant to the Agreement (whether pursuant to Sections 3(b) or 3(c) hereof, or otherwise), in the manner as the Purchaser may determine, an amount equal to any or all amounts due to the Purchaser pursuant to this Agreement.
Purchaser’s Right of Offset. To the extent Purchaser makes a timely claim for indemnification pursuant to Section 7.8(a) which is uncontested by the Representative or is ultimately determined in favor of Purchaser, Purchaser shall be entitled to offset the amount due to it with respect to such claim from any payments owed under the Notes or Section 3.3 of this Agreement. In the event of a claim for indemnification under Section 7.8(a) that is contested by the Representative, Purchaser shall not have the right to offset the amount claimed unless and until such time as (i) the Purchaser and the Representative reach an agreement on such claim, or (ii) such claim is ultimately determined in favor of Purchaser. Pending such agreement or resolution with respect to such claim, the Purchaser shall be entitled to deduct the amount of such claim from any payments owed under the Notes or Section 3.3 of this Agreement and deposit such amount in escrow with an escrow agent mutually acceptable to Purchaser and Representative. If Purchaser and Representative do not agree on an escrow agent within five Business Days of such deduction, Purchaser shall be entitled to deposit such escrow amount with a bank, trust company or savings and loan association which is organized under the laws of the United States or any state thereof having capital, surplus and undivided profits aggregating in excess of $100 million. Purchaser, Representative and any such escrow agent shall enter into an escrow agreement substantially in the form of Exhibit 7.9. In the event the payments to Seller under the Notes and Section 3.3 are insufficient to cover any such claim, Seller and Xxxxxx shall deliver the balance of the amount due in immediately available funds by wire transfer to an account designated by Purchaser.
Purchaser’s Right of Offset. Purchaser shall have the right, at its sole discretion, to offset, on a dollar-for-dollar basis, against any and all amounts due Electricom pursuant to the Note any amounts due to Purchaser from Sellers pursuant to this Agreement, including, without limitation, Indemnifiable Damages due pursuant to Section 10.2, adjustments pursuant to Section 4.3(d) and any other amounts due from either of the Sellers pursuant to any other provision hereof (the "Right of Offset"). Before exercising its Right of Offset, Purchaser shall provide written notice of its intent to exercise such right.
Purchaser’s Right of Offset. For the sake of clarity, subject to the terms of this Article 8, including the limitations set forth in Section 8.1(d) above and Section 8.2 below, Buyer may seek recovery for the satisfaction of indemnification obligations under Section 8.3(a) in the form of a reduction and setoff against the Contingent Payments otherwise payable to Seller hereunder.
Purchaser’s Right of Offset. Purchaser shall have the right to offset against the sum due under Promissory Note B, any obligations to Purchaser for Damages (subject to the $5,000 exclusion contained in Section 10.3 hereof) pursuant to the Indemnification set forth in Section 10.1(a) hereof and any claims by creditors or others against or affecting the Business or the Assets which are asserted on or before the maturity date of Promissory Note B. Promissory Note B shall be endorsed with a legend that it is subject to this right of offset and it shall be held in escrow by Purchaser's attorney. On the maturity date of Note B, such Note or the amended or replacement Note B, as appropriate, shall be released from escrow and delivered to Seller, with the principal amount reduced by the aggregate of any offsets and adjustments permitted by this Agreement and any then outstanding claims.
Purchaser’s Right of Offset. Anything in this Agreement to the contrary notwithstanding, Purchaser may deduct, withhold and set off from the Subordinated Note any amount allocable to the resolution of Gurcke’s indemnification obligations under this Article VII as to which Gurcke is obligated to indemnify Purchaser pursuant to this Article VII. Purchaser shall deliver written notice of Gurcke of any amounts deducted from the Subordinated Note pursuant to this Section 7.10.
Purchaser’s Right of Offset. In addition to Purchaser's other rights and remedies under this Agreement and notwithstanding any other provision of this Agreement, for so long as any portion of any shares of the AVRI Stock have not been issued to Seller, in the event Purchaser has a claim against Seller for breach of any of the representations, warranties and covenants made by Seller in this Agreement or is otherwise entitled to indemnity from Seller pursuant to Section 5.3, Purchaser shall be entitled to offset the amount of such claim(s) or indemnity against the AVRI Stock.
Purchaser’s Right of Offset. Any amount for which any Seller is liable hereunder or pursuant hereto, whether for an indemnification claim or otherwise (including any costs related thereto for which any Seller is responsible), may at Purchaser's option be setoff against any payments due from Purchaser or its affiliates to any Seller pursuant to any agreement, instrument or document, including but not limited to this agreement. Neither the exercise of nor the failure to exercise such setoff right shall constitute an election of remedies nor limit Purchaser or its affiliates in any manner in the enforcement of any other remedies available to any of them.
Purchaser’s Right of Offset. In the event that the aggregate Losses shall, at any time, exceed the amount available in the Escrow Fund to pay such Losses (such excess Losses being referred to as the Non-Secured Losses), Purchaser shall have the right to offset and deduct the Non- Secured Losses from: (i) amounts due to the Individual Stockholders by way of any bonus payments referred to in Section 5.6 above; (ii) amounts due to Xxxxx X. Xxxxxxxxx as compensation under the terms of the Non-Competition agreement annexed as Exhibit 2; and (iii) amounts due to the Individual Stockholders and CVCA in connection with any facilities sublease or otherwise as set forth in Section 2.4(b) above. In the event the Purchaser shall exercise its right to offset Non- Secured Losses, it shall so notify the Individual Stockholders and CVCA immediately prior to effecting such offset.
