Common use of Satisfaction of Indemnification Claims Clause in Contracts

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 the event that (a) the Stockholders' Representative shall not have objected to the amount claimed by an Indemnified Party for indemnification with respect Indemnitee becomes entitled to any Loss in accordance with the procedures set forth in the Escrow Agreement or payments from an Indemnifying Owner pursuant to this Section 9B (bincluding interest thereon (if any) the Stockholders' Representative and all costs and expenses related thereto), such Indemnitee’s sole recourse for such payments shall have delivered notice of its disagreement as be 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 receive from the Stockholders and the Escrow Agent shall have receivedCompany, in the case by wire transfer or delivery of clause (i) aboveother immediately available funds to an account designated by such Indemnitee, 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 all future Distributions (as defined in the Escrow JV Agreement) otherwise payable to the indemnifying Owner (excluding the amount of any amount determined such Distributions necessary for such indemnifying Owner to be directly pay any income tax obligations of such indemnifying Owner due and payable as of the date of such Distribution or which will become due and payable prior to the next scheduled Tax Distribution (as defined in the JV Agreement), in each case to the extent related to its ownership of PECS, CPECS and/or Shares) until all such payments owed to such Indemnitee pursuant to this Section 9B have been satisfied in full; provided that, in the Indemnified Party event that all or any portion of such payments remain unpaid as of the initial Change of Control or Public Offering after the date hereof, such indemnifying Owner shall, concurrently with the consummation of such initial Change of Control or Public Offering, pay directly to such Indemnitee, by wire transfer or delivery of other immediately available funds to an account designated by such Indemnitee, the full amount of all such remaining payments. Notwithstanding any implication herein to the contrary, all payments made by the Company to an Indemnitee pursuant to the immediately preceding sentence shall, for all purposes hereunder and under this Article VII the JV Agreement, be deemed to have been Distributed to the indemnifying Owner in accordance with the Escrow JV 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 the event that (a) the Stockholders' Representative An Indemnifying Party shall not have objected be liable for and required to pay undisputed Losses owed under this Section 11.4 to the amount claimed by an 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 with respect 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 procedures set forth 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 Escrow Agreement or (b) principal amount then outstanding of the Stockholders' Representative shall have delivered notice of its disagreement as 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 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 Deferred Cash Consideration Note in accordance with this Section 11.4 then the Escrow Agreement. Each aggregate amount of Nu Skin and each all interest paid on a portion of the Stockholders acknowledge and agree that with respect principal equal to any such Final Loss Amount prior to the Escrow Shares held by time of such indemnification payment shall be applied against and reduce the Escrow Agent pursuant interest payable on the Deferred Cash Consideration Note in future periods in such a manner so as to reduce interest payments 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 $23.00maximum extent possible as soon as possible.

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 (a) it is finally determined by a court of competent jurisdiction, or the Stockholders' Acquiror and the Holder Representative shall not have objected agree, that any Acquiror Indemnitee is entitled to the amount claimed by an Indemnified Party for indemnification under this ARTICLE XI with respect to any Loss 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 procedures set forth in remaining amount of the Indemnification Escrow Agreement or (b) Amount less the Stockholders' 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 have delivered notice of its disagreement as give joint written instructions 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 release to the Indemnified Party from the Escrow Fund (as defined in the Escrow Agreement) any amount determined to be owed Holder Representative for distribution to the Indemnified Party under this Article VII Indemnification Escrow Participants (pro rata, in accordance with the their respective Indemnification Escrow Agreement. Each of Nu Skin and each Percentages), any portion of the Stockholders acknowledge remaining Indemnification Escrow Amount retained in respect of such pending Asserted Liabilities for indemnification remaining after the resolution of such pending Asserted Liability. (d) The Holder Representative and agree that Acquiror shall promptly deliver joint written instructions required pursuant to the terms of the Indemnification Escrow Agreement with respect to the Indemnification Escrow Shares held Amount in order to make the distributions required by this Section 11.5 or in the event that any Acquiror Indemnitee is entitled to indemnification from the Indemnification Escrow Agent pursuant Amount under this ARTICLE XI with respect 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 $23.00any Acquiror Losses.

Satisfaction of Indemnification Claims. In the event that (a) the Stockholders' Representative shall not have objected Subject to the amount claimed provisions of this Article XIV, including this Section 14.5(e), any indemnification of any Indemnified Parties pursuant to this Article XIV or for other amounts payable by an any Indemnifying Parties under this {JK01396073.28 } Agreement shall be effected promptly (and, in any event, within two Business Days after a determination that the Indemnified Party for is entitled to indemnification pursuant to Section 14.5(b)) by wire transfer of immediately available funds from the Indemnifying Parties or the Escrow Agent, if applicable, to an account designated by the Indemnified Party. With respect to each Primary Holdback Claim asserted by Buyer during the period from and after the Closing Date up to the Second Holdback Release Date, and with respect to any Loss each Secondary Holdback Claim asserted by Buyer during the period from the Closing Date up to the Holdback Expiration Date, in each case, upon final resolution or determination of such an indemnity claim by the Parties or in accordance with this Article XIV, such amount as would satisfy such finally resolved or determined indemnity claim will, to the procedures set forth extent it is capable of being satisfied (in whole or in part) by the amounts remaining in the Escrow Agreement or (b) the Stockholders' Representative shall have delivered notice of its disagreement Account 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 noticetime, mutually agreed that be satisfied first from the Stockholders are obligated to indemnify the Indemnified Party for a specified amount Escrow Account and Buyer and Seller shall have so promptly (and in any event within two Business Days after such resolution or determination) jointly notified instruct the Escrow Agent or (ii) to disburse to Buyer a final nonappealable judgment shall have been rendered by a court having jurisdiction over portion of the matters relating Holdback Amount equal to such claim by amount. For the Indemnified Party for indemnification from the Stockholders and the Escrow Agent shall have receivedavoidance of doubt, 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 disbursements from the Escrow Fund Account shall not be the sole and exclusive recourse of Buyer for any breach of any representation, warranty or covenant of Seller pursuant to this Agreement or any other post-Closing liability of Seller pursuant to this Agreement (as defined including any indemnity obligation), and, if such amounts in the Escrow Agreement) Account are insufficient to fully satisfy any amount determined amounts to which any member of the Buyer Group may be owed entitled hereunder, such insufficiency shall not be deemed to prohibit, restrict or otherwise limit such member of the Buyer Group from seeking recovery hereunder (subject to the Indemnified Party under terms of 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. (a) In the event that any Shareholder shall have any liability (afor indemnification or otherwise) to any Parent Indemnitee under this Section 9, Parent is authorized to make a claim against the Stockholders' Representative shall not have objected Shareholders Indemnity Shares by notifying the Escrow Agent in writing with a copy to the amount claimed by an Indemnified Party for indemnification with respect Shareholders' Agent pursuant to any Loss in accordance with the procedures set forth in terms of the Escrow Agreement or Agreement. (b) In the Stockholders' Representative event Parent shall have delivered notice any liability (for indemnification or otherwise) to any Shareholder Indemnitee under this Section 9, the Shareholders' Agent shall have the sole right to make a claim for indemnification, reimbursement or contribution hereunder and shall do so by notifying Parent in writing of its disagreement as such claim clearly stating the basis for such claim. Parent shall have the option to satisfy such liability by delivering to the Shareholders' Agent shares of Parent Common Stock equal in value to the amount of any indemnification requested by an Indemnified Party and either (i) the Stockholders' Representative and liability, such number of shares of Parent Common Stock to be determined using the Indemnified Party shall have, subsequent to the giving fair market value 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 Parent Common Stock (as defined determined Parent's board of directors in its sole discretion) at the Escrow Agreement) any amount determined time the obligation to be owed to the Indemnified Party under this Article VII make such payment accrues in accordance with this Section 9. Further, upon notice to the Escrow Agreement. Shareholders' Agent specifying in reasonable detail the basis for such set-off, Parent may set off any amount to which it may be entitled to receive under this Section 9 against amounts otherwise payable to Shareholder Indemnitees. (c) Each of Nu Skin and each the Indemnitors will have the right to dispute the validity of the Stockholders acknowledge and agree any claim submitted for indemnification, reimbursement or contribution hereunder, provided that with respect to the Escrow Shares held by the Escrow Agent claims arising under Section 9.2(a), any such dispute shall be carried out pursuant to the terms of 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 the event that Subject to this ARTICLE VII, within twenty (a20) the Stockholders' Representative shall not have objected to the amount claimed by an Indemnified Party for indemnification with respect to days after any Loss in accordance with the procedures set forth in the Escrow Agreement final decision, judgment 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 award shall have been rendered by a court having Governmental Authority with competent jurisdiction over (and a resolution of any appeal therefrom and the matters relating expiration of the time in which to such claim by appeal therefrom), or a settlement shall have been consummated, or the Indemnified Party and the Indemnifying Party shall have arrived at a mutually binding agreement, in each case, with respect to a claim for indemnification from hereunder: (i) if the Stockholders claim for indemnification was brought pursuant to Section 7.2, the indemnifying Purchaser shall pay or cause to be paid all sums due and owing to the Seller Indemnified Party in immediately available funds to an account specified by the Seller Indemnified Party; and (ii) if the claim for indemnification was brought pursuant to Section 7.3(a) (except in respect of any breach of a Fundamental Rep, or claims based on fraud, willful misconduct, or intentional misrepresentation), the Purchaser and Seller shall cause the Escrow Agent shall have received, in to pay to the case of clause (i) above, written instructions from the Stockholders' Representative and the Purchaser Indemnified Party or, (payable by wire transfer of immediately available U.S. funds in accordance with the case of clause (ii) above, a copy of written payment instructions furnished by the final nonappealable judgment of the court, Purchaser to the Escrow Agent shall deliver to the Indemnified Party Agent), 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 , any sums due and each of owing to the Stockholders acknowledge Purchaser Indemnified Party; and (iii) all sums due and agree that owing with respect to any claim for indemnification that was brought pursuant to Section 7.3 that are not recovered (or not recovered in full) by the Purchaser Indemnified Party out of the Escrow Shares held Fund shall be paid (or caused to be paid) by the Escrow Agent pursuant Seller Parties to the Escrow Agreement, for purposes of determining Purchaser Indemnified Party in immediately available funds to an account specified by the number of Escrow Shares necessary to satisfy a Loss, each such Escrow Share shall be valued at $23.00Purchaser Indemnified Party.