Satisfaction of Indemnification Claims. (a) Notwithstanding the provisions of ARTICLE I, on the Closing Date, $4,600,000.00 of the Merger Consideration (the “Indemnification Escrow Amount”) shall be paid by Acquiror to the Exchange Agent to be held in escrow pursuant to the terms of an Indemnification Escrow Agreement in the form of Annex C (the “Indemnification Escrow Agreement”). The Indemnification Escrow Amount shall be held and invested by the Exchange Agent as “Escrow Agent” in accordance with the terms of the Indemnification Escrow Agreement, and released in accordance with the terms of Section 1.5(d), Article XI, and the Indemnification Escrow Agreement.
(b) In the event that it is finally determined by a court of competent jurisdiction, or the Acquiror and the Holder Representative agree, that any Acquiror Indemnitee is entitled to indemnification under this ARTICLE XI with respect to any claim for indemnification hereunder, any Acquiror Losses with respect to such claim (subject to the other limitations contained herein) shall be satisfied solely by payment from the Indemnification Escrow Amount (and otherwise without recourse to the holders of Common Shares, Warrants or In-the-Money Options immediately prior to the Effective Time), in which event Acquiror and the Holder Representative shall give joint written instructions to the Escrow Agent to distribute to such Acquiror Indemnitee such amount payable from the Indemnification Escrow Amount.
(c) As promptly as practicable after the expiration of the Survival Period, the Acquiror and the Holder Representative shall give joint written instructions to the Escrow Agent to release to the Holder Representative for distribution to the Indemnification Escrow Participants (pro rata, in accordance with their respective Indemnification Escrow Percentages) all or any remaining portion of the remaining amount of the Indemnification Escrow Amount less the aggregate of all Asserted Liabilities of the Acquiror Indemnitees which are properly asserted and pending on such date. Thereafter, promptly upon the resolution of any such pending Asserted Liabilities, the Acquiror and the Holder Representative shall give joint written instructions to the Escrow Agent and the Escrow Agent shall release to the Holder Representative for distribution to the Indemnification Escrow Participants (pro rata, in accordance with their respective Indemnification Escrow Percentages), any portion of the remaining Indemnification Escrow Amount retained in respect of such pendi...
Satisfaction of Indemnification Claims. Except as set forth in Section 9.4(b), the Indemnified Parties shall have the right but not the obligation to seek satisfaction of claims for indemnification from either the Escrow Fund pursuant to the Escrow Agreement or any of the Indemnifying Securityholders. If any amount owed under this Article IX is not paid within 30 days of the Indemnifying Securityholders and the Indemnified Parties agreeing such amount is due or upon a final adjudication determined by a court of competent jurisdiction that such amount is due (either, a “Final Determination”), the Indemnifying Securityholder shall reimburse the Indemnified Party for any and all costs or expenses of any nature or kind whatsoever (including reasonable legal fees) incurred in seeking to collect such amount under this Article IX, and no limitation in this Article IX shall apply to any such reimbursement. If any amount owed under this Article IX is not paid within 30 days of a Final Determination, Parent may, in its sole discretion, in addition to all other remedies it may have, recover some or all of such amount by setting off such amount against any amounts then due and payable by Parent or any of its Affiliates to such Indemnifying Securityholder or any of their respective Affiliates under this Agreement,. In each case, the exercise of such right to cancel or set off shall not constitute a breach of any Indemnified Party’s obligations under this Agreement, and the exercise or failure to exercise such right to cancel or set off shall not constitute an election of remedies or limit any Indemnified Party in any manner in the enforcement of any other remedies that may be available to such Indemnified Party. Each Stockholder and Optionholder hereby irrevocably constitutes and appoints Parent as their true and lawful attorney-in-fact and agent with full power of substitution to do any and all things and execute any and all documents which may be necessary to effectuate any cancellation of Equity Securities or set off in accordance with this Section 9.7. The foregoing grant of authority is a special power of attorney coupled with an interest and is irrevocable.
Satisfaction of Indemnification Claims. All indemnification obligations pursuant to Article X shall be paid within a reasonable period of time after a claim for indemnification has been made and its validity finally determined.
Satisfaction of Indemnification Claims. In the event that (a) the Stockholders' Representative shall not have objected to the amount claimed by an Indemnified Party for indemnification with respect to any Loss in accordance with the procedures set forth in the Escrow Agreement or (b) the Stockholders' Representative shall have delivered notice of its disagreement as to the amount of any indemnification requested by an Indemnified Party and either (i) the Stockholders' Representative and the Indemnified Party shall have, subsequent to the giving of such notice, mutually agreed that the Stockholders are obligated to indemnify the Indemnified Party for a specified amount and shall have so jointly notified the Escrow Agent or (ii) a final nonappealable judgment shall have been rendered by a court having jurisdiction over the matters relating to such claim by the Indemnified Party for indemnification from the Stockholders and the Escrow Agent shall have received, in the case of clause (i) above, written instructions from the Stockholders' Representative and the Indemnified Party or, in the case of clause (ii) above, a copy of the final nonappealable judgment of the court, the Escrow Agent shall deliver to the Indemnified Party from the Escrow Fund (as defined in the Escrow Agreement) any amount determined to be owed to the Indemnified Party under this Article VII in accordance with the Escrow Agreement. Each of Nu Skin and each of the Stockholders acknowledge and agree that with respect to the Escrow Shares held by the Escrow Agent pursuant to the Escrow Agreement, for purposes of determining the number of Escrow Shares necessary to satisfy a Loss, each such Escrow Share shall be valued at $23.00.
Satisfaction of Indemnification Claims. In each case where the Company is required to provide indemnification pursuant to this Section 6, and there is insufficient capital in the Company to meet the Company’s indemnification obligation under this Section 6, taking into account the Company’s future cash needs, as reasonably determined by the Board of Directors, the Majority Purchasers may elect (but shall not be required to elect) to have the Company issue up to a number of shares of Series A Preferred Stock equal to the amount of indemnification owed (or such portion thereof as elected by the Majority Purchasers in its sole discretion) divided
Satisfaction of Indemnification Claims. If Seller shall acknowledge and agree in writing, or it is finally determined pursuant to the dispute resolution procedures set forth in Article X hereof, that an Indemnitee is entitled to indemnification hereunder in respect of Losses incurred by such Indemnitee (the date of such acknowledgement and agreement or determination, the “Claim Determination Date”), Seller shall make payment in respect of such Losses within five (5) days following the Claim Determination Date (i) by delivering to such Indemnitee that number of shares of Buyer Stock equal in value to the amount of the Losses to be indemnified hereunder or, at the option of Buyer, (ii) by reducing the principal amount of the Promissory Notes outstanding, and any interest accrued thereon, by the amount of such Losses. Further, at the option of Buyer, the indemnifiable Losses of any Indemnitee may be satisfied by Buyer withholding from any future Earn-Out Share Award to which Seller is entitled that number of Earn-Out Shares equal in value to the amount of the indemnifiable Losses of such Indemnitee. For purposes of calculating the number of shares of Buyer Stock necessary to satisfy the Losses of an Indemnitee as described in this Section 8.5, each share of Buyer Stock shall be valued using the Applicable Stock Price.
Satisfaction of Indemnification Claims. There are currently 1,100,000 shares of Parent Common Stock held in escrow for the benefit of the Company pursuant to (1) that certain Share Exchange Agreement dated as of January 11, 2018 by and between Parent and the Company and (2) that certain Escrow Agreement dated as of January 11, 2018 by and among Parent, the Company, and Corporate Stock Transfer, Inc. (the “Prior Escrow”). At or prior to Closing, the 1,100,000 shares of Parent Common Stock currently held pursuant to the Prior Escrow will be released, and 860,000 shares of the Merger Shares will be deposited into a new escrow (the “Transaction Escrow”) in order to fund any indemnification obligations of the Company Stockholders’ under this Agreement. All Merger Shares remaining in the Transaction Escrow and not subject to any pending claims 18 months following the Closing Date, or thereafter upon any Merger Shares no longer subject to any pending claim, shall be released to the Company Stockholders in accordance with the Consideration Schedule and the escrow agreement documenting the terms of the Transaction Escrow with Corporate Stock Transfer, Inc.
Satisfaction of Indemnification Claims. An Indemnifying Party shall be liable for and required to pay undisputed Losses owed under this Section 11.4 to the applicable Indemnified Party within ten Business Days the Indemnified Party and the Indemnifying Party agreeing such amount is due or upon final adjudication determined by a court of competent jurisdiction that such amount is due (either, a “Final Determination” and the amount of such Loss as so determined, a “Final Loss Amount”). Following a Final Determination for a Final Loss Amount that relates to a claim for indemnification for which the Stockholders or RemainCo are liable pursuant to Section 11.2(a) or 11.2(b), as applicable, if the Deferred Cash Consideration Note remains outstanding at such time, then any Final Loss Amount due to the applicable Purchaser Indemnitee shall be paid and satisfied by a reduction in the principal amount then outstanding of the Deferred Cash Consideration Note, which reduction shall be effected in accordance with Section 3.3(a) of the Deferred Cash Consideration Note; otherwise, any payment of a Final Loss Amount shall be made in full in cash, provided however that any Final Loss Amount that relates to a claim for indemnification pursuant to Section 11.2(b)(iv) shall be paid and satisfied solely by a reduction in the principal amount then outstanding of the Deferred Cash Consideration Note. Notwithstanding the foregoing, Purchaser shall, in accordance with, and to the extent provided in, Section 3.3(b) of the Deferred Cash Consideration Note, have at all times the right to withhold from amounts otherwise payable pursuant to the Deferred Cash Consideration Note, the aggregate amount, without duplication, of monetary damages sought in connection with any outstanding claims for indemnification by the Purchaser Indemnitees under this Agreement as of the date of such payment until, on a claim by claim basis, a Final Determination has been made in respect of such claim. If any Final Loss Amount is paid and satisfied by reduction in the principal amount of the Deferred Cash Consideration Note in accordance with this Section 11.4 then the aggregate amount of all interest paid on a portion of the principal equal to any such Final Loss Amount prior to the time of such indemnification payment shall be applied against and reduce the interest payable on the Deferred Cash Consideration Note in future periods in such a manner so as to reduce interest payments to the maximum extent possible as soon as possible.
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Satisfaction of Indemnification Claims. Any claim by any of the Seller Indemnified Parties for Losses under Section 11.3 shall be payable by Buyer in cash, by wire transfer, check or other method acceptable to the Seller Indemnified Parties. Any claim by any of the Buyer Indemnified Parties for Losses under Section 11.2 shall be payable by Seller in cash, by wire transfer, check or other method acceptable to the Buyer Indemnified Parties.
