Common use of Set Off Right Clause in Contracts

Set Off Right. Subject to Section 9.05(a), the Parties hereby acknowledge and agree that, in addition to any other right hereunder, Parent and its Affiliates shall have the right, but not the obligation, to set off up to seventy five percent (75%) of the Sales Earnout, if payable pursuant to Section 2.08, against any amounts owed at such time by the Equityholders to the Company, Parent, or the Surviving Corporation (or any of their Affiliates) hereunder, including amounts payable in respect of one or more claims for indemnification by any Parent Indemnified Party pursuant to Article IX hereof; provided that the claim for indemnification is asserted prior to the required payment of the Sales Earnout pursuant to Section 2.08(a). If Parent elects to exercise its right of set off hereunder, it shall give the Equityholders’ Representative written notice of such election (the “Set Off Notice”), which Set Off Notice shall include the amount(s) to be set off from the Sales Earnout and a reasonable description of the circumstances giving rise to Parent’s entitlement to such set off. The Equityholders’ Representative shall have thirty (30) calendar days after receipt of such Set Off Notice to review such Set Off Notice and, during such thirty (30)-day period, Equityholders’ Representative and Parent shall negotiate in good faith to resolve any discrepancies in the set off amount proposed by Parent. If the Equityholders’ Representative and Parent are unable to so agree on the set off amount proposed by Parent during such thirty (30)-day period, the Parent and Equityholders’ Representative shall resolve such dispute in accordance with the procedure described in Section 12.11. Notwithstanding anything to the contrary in this Agreement, Parent shall be entitled to withhold and retain the amount to be set off described in the Set Off Notice until any pending disputes as to the amount to be set off are resolved in accordance with the preceding sentences.

Set Off Right. Subject Notwithstanding any provision of this Agreement to Section 9.05(a)the contrary, the Parties parties hereby acknowledge and agree that, in addition to any other right hereunder, Parent and its Affiliates shall have the right, but not the obligation, from time to time to set off up any indemnification payments alleged by Parent to seventy five percent (75%) of the Sales Earnout, if payable pursuant to Section 2.08, against any amounts be owed at such time by the Equityholders to the Company, Parent, or the Surviving Corporation (or any of their Affiliates) hereunder, including amounts payable in respect of one or more claims for indemnification by any Parent Indemnified Party Parties at such time pursuant to Article IX hereofagainst any Milestone Payment that is owed and has not yet been paid; provided that the claim aggregate amount that Parent may set off as of a given time for indemnification is asserted prior payments owed by the Equityholders to the required payment Parent Indemnified Parties pursuant to Sections 9.2(a) and 9.2(b) in respect of breaches of the Sales Earnout Specified IP Representations and other non-Fundamental Representations shall not exceed the Specified Liability Limit as of such time; provided, further that for the avoidance of doubt, Parent’s right to set off indemnification payments owed by the Equityholders to the Parent Indemnified Parties pursuant to Section 2.08(a). If Sections 9.2(a) and 9.2(b) shall in each case be subject to Parent elects having delivered notice of such claim to exercise its right of set off hereunder, it shall give the Equityholders’ Representative written notice in accordance with the applicable provisions of such election (Article IX within the “Set Off Notice”)applicable survival period specified in Section 9.1. If it is finally resolved through negotiation or final, which Set Off Notice shall include the amount(s) non-appealable decision of a court of competent jurisdiction that all or a portion of any amount set off by Parent was not entitled to be set off from the Sales Earnout and a reasonable description of the circumstances giving rise to by Parent’s entitlement to such set off. The Equityholders’ Representative shall have thirty (30) calendar days after receipt of such Set Off Notice to review such Set Off Notice and, during such thirty (30)-day period, Equityholders’ Representative and then Parent shall negotiate in good faith promptly pay the amount Parent was not entitled to resolve any discrepancies in the set off amount proposed by Parent. If to the Equityholders’ Representative or its designated agent plus interest accruing from and Parent are unable including the date such amount was withheld from the applicable Milestone Payment but excluding the date of payment at a rate per annum equal to so agree on (a) the set off amount proposed by Parent prime rate as published in the Wall Street Journal, Eastern Edition in effect from time to time during such thirty period plus (30)-day period, the Parent and Equityholders’ Representative shall resolve such dispute in accordance with the procedure described in Section 12.11. Notwithstanding anything to the contrary in this Agreement, Parent shall be entitled to withhold and retain the amount to be set off described in the Set Off Notice until any pending disputes as to the amount to be set off are resolved in accordance with the preceding sentencesb) one percent (1%).

Set Off Right. Subject (a) Notwithstanding any provision of this Agreement to Section 9.05(a)the contrary, the Parties parties hereby acknowledge and agree that, in addition to any other right hereunder, Parent and its Affiliates Buyer shall have the right, but not the obligation, right from time to set off up to seventy five percent (75%) time following delivery of the Sales Earnout, if payable a Claims Notice pursuant to Section 2.086.5 to set-off the excess of any Claimed Amount over the then remaining balance of the Holdback Amount (the “Proposed Set-Off Amount”), against any amounts owed at such time Earnout Amounts required to be paid by the Equityholders to the Company, Parent, or the Surviving Corporation (or any of their Affiliates) hereunder, including amounts payable in respect of one or more claims for indemnification by any Parent Indemnified Party pursuant to Article IX hereof; provided that the claim for indemnification is asserted prior to the required payment of the Sales Earnout Buyer pursuant to Section 2.08(a). 1.6 of this Agreement. (b) If Parent Buyer elects to exercise its right of set set-off hereunderrights hereunder against any amounts required to be paid by Buyer to the Company or the Company pursuant to this Agreement, it shall give the Equityholders’ Representative Company written notice of such election (the “Set Set-Off Notice”), which Set Set-Off Notice shall include a copy of the amount(sClaim Notice described in Section 6.5(a) and the amount to be set set-off from the Sales Earnout and a reasonable description of the circumstances giving rise to ParentBuyer’s entitlement to such set set-off. The Equityholders’ Representative . (c) Any dispute regarding the amount, if any, of indemnification to which an Indemnitee shall have thirty (30) calendar days after receipt of such Set Off Notice to review such Set Off Notice and, during such thirty (30)-day period, Equityholders’ Representative and Parent be entitled shall negotiate in good faith to resolve any discrepancies in the set off amount proposed by Parent. If the Equityholders’ Representative and Parent are unable to so agree on the set off amount proposed by Parent during such thirty (30)-day period, the Parent and Equityholders’ Representative shall resolve such dispute be determined in accordance with Section 6.5(b). In the procedure described in Section 12.11. Notwithstanding anything to event that there is a final determination that the contrary in this Agreement, Parent shall be entitled to withhold and retain Sellers did not owe Buyer (or any of its Affiliates) all or any portion of the amount to be set off described in the Set Off Notice until any pending disputes as set-off, Buyer shall promptly repay to the amount Company all such amounts that are so determined to have been incorrectly set-off. For purposes of this Section 1.7, a determination shall be final if any and all appeals therefrom shall have been resolved or if all time periods for appeal shall have passed and no party shall have commenced any appeal therefrom. In the case of any such set-off by Buyer pursuant to this Section 1.7, the Sellers’ obligation to make such payment (or any portion thereof) shall be deemed satisfied and discharged to the extent of such set-off. The exercise of such right of set-off by Buyer in good faith, whether or not finally determined to be set off are resolved in accordance with the preceding sentencesjustified, will not constitute a breach under this Agreement.

Set Off Right. Subject Notwithstanding any provision of this Agreement to Section 9.05(a)the contrary, the Parties parties hereby acknowledge and agree that, in addition to any other right hereunder, Parent and its Affiliates shall have the right, but not the obligation, from time to time to set off up to seventy five percent (75%) of the Sales Earnout, if payable pursuant to Section 2.08, against any amounts owed at such time by (i) the Equityholders Escrow Agent on behalf of the Company Shareholders, the other Persons set forth on Schedule A hereto or KLO Shareholders to the Company, Parent, Company or the Surviving Corporation Parent (or any of their Affiliates) hereunder, including amounts payable indemnification payments to be paid by the Company Indemnifying Parties as set forth in respect of one Article XII hereof, or more claims for indemnification (ii) any Company Shareholder or KLO Shareholder pursuant to its respective Release Agreement against any (A) Contingent Purchase Price Payment required to be paid by any Parent Indemnified Party to the Company Shareholders, the other Persons set forth on Schedule A hereto or the KLO Shareholders pursuant to this Agreement, (B) payments owed to X. Xxxxxx pursuant to Article IX V hereof or (C) indemnification payments required to be paid by the Parent Indemnifying Parties pursuant to Article XII hereof; provided provided, however, that the claim for indemnification is asserted prior to the required payment of the Sales Earnout any set-off pursuant to Section 2.08(a)clause (ii) with respect to a Company Shareholder or KLO Shareholder shall be applied only against payments owed to such Company Shareholder or KLO Shareholder and no other Company Shareholder or KLO Shareholder. If Parent elects to exercise its right of set-off rights hereunder against any amounts required to be paid by Parent to the Company Shareholders, the other Persons set off hereunderforth on Schedule A hereto or KLO Shareholders pursuant to this Agreement, it shall give the Equityholders’ Seller Representative written notice of such election (the “Set Set-Off Notice”), which Set Set-Off Notice shall include the amount(s) amount to be set off from the Sales Earnout and a reasonable description of the circumstances giving rise to Parent’s entitlement to such set set-off. The Equityholders’ Seller Representative shall have thirty (30) calendar days after receipt of such Set Set-Off Notice to review such Set Set-Off Notice and(the “Set-Off Review Period”), and in the event that the Seller Representative has any objections or challenges to the exercise of the set-off right of Parent, the Seller Representative shall submit a single written notice of set-off dispute (“Notice of Set-Off Dispute”) to Parent during such thirty (30)-day periodSet-Off Review Period, Equityholders’ specifying in reasonable detail the nature of any asserted objections or challenges. In the event of any such dispute, the Seller Representative and Parent shall negotiate in good faith to resolve any discrepancies in such dispute for thirty (30) days after receipt by Parent of the set off amount proposed by ParentNotice of Set-Off Dispute. If the Equityholders’ Seller Representative and Parent are unable to so agree on the set off amount proposed by Parent during resolve such thirty (30)-day dispute within such 30-day period, the amount payable by Parent and Equityholders’ Representative shall resolve such dispute in accordance with the procedure described in Section 12.11. Notwithstanding anything to the contrary Company Shareholders, the other Persons set forth on Schedule A hereto or the KLO Shareholders shall automatically, pending a final determination, be reduced by the amount set forth in this Agreementthe Set-Off Notice. In the event that there is a final determination that the Company Shareholders, the other Persons set forth on Schedule A hereto or the KLO Shareholders did not owe the Company or Parent (or any of their Affiliates) the amount that has been set off, Parent shall promptly pay to the Company Shareholders, the other Persons set forth on Schedule A hereto or the KLO Shareholders, as the case may be, all such amounts that are so determined to have been incorrectly set off. For purposes of this Section 3.5, a determination shall be entitled final if any and all appeals therefrom shall have been resolved or if thirty (30) days shall have passed from the rendering of such determination (or of any determination of appeal therefrom) and no party shall have commenced any appeal therefrom. In the case of any such set-off by Parent pursuant to withhold this Section 3.5, the Company Shareholders’ or the KLO Shareholders’ obligation to make such payment (or any portion thereof) shall be deemed satisfied and retain discharged to the amount extent of such set-off. The exercise of such right of set-off by Parent in good faith, whether or not finally determined to be set justified, will not constitute a breach under this Agreement; provided, however, that if the exercise of such right of set-off described in the Set Off Notice until by Parent is finally determined to be unjustified or incorrectly set-off, any pending disputes as amounts required to be paid by Parent to the amount Company Shareholders, the other Persons set forth on Schedule A hereto or the KLO Shareholders pursuant to be this Agreement shall bear interest at an annual rate of 5% from the date on which such payment was due and payable until the date payment of same is actually received by the Company Shareholders, the other Persons set off are resolved in accordance with forth on Schedule A hereto or the preceding sentencesKLO Shareholders, as the case may be.

Set Off Right. Subject Notwithstanding any provision of this Agreement to Section 9.05(a)the contrary, the Parties parties hereby acknowledge and agree that, in addition to any other right hereunder, Parent Buyer and its Affiliates shall have the right, but not the obligation, from time to time to set off up to seventy five percent (75%) of the Sales Earnout, if payable pursuant to Section 2.08, against any amounts owed at such time by the Equityholders Company to Buyer or its Affiliates hereunder, including indemnification payments payable to Buyer Indemnified Parties pursuant to Article 6 hereof against the Earnout Payment that is owed by Buyer to the Company, Parent, or the Surviving Corporation (or any of their Affiliates) hereunder, including amounts payable in respect of one or more claims for indemnification by any Parent Indemnified Party pursuant to Article IX hereof; provided that the claim for indemnification is asserted prior to the required payment of the Sales Earnout pursuant to Section 2.08(a). If Parent Buyer elects to exercise its right of to set off hereunder, it shall give the Equityholders’ Representative Company written notice of such election (the “Set Off Notice”), which Set Off Notice shall include the amount(s) to be set off aside from the Sales Earnout Payment and a reasonable description of the circumstances giving rise to ParentBuyer’s entitlement to such set off. The Equityholders’ Representative Company shall have thirty (30) calendar days 10 Business Days after receipt delivery of such Set Off Notice to review such Set Off Notice andNotice, and during such thirty (30)-day 10 Business Day period, Equityholders’ Representative Buyer and Parent the Company shall negotiate in good faith to resolve any discrepancies in the set off amount proposed by ParentBuyer. If Buyer and the Equityholders’ Representative and Parent Company are unable to so agree on the set off amount proposed by Parent during such thirty Buyer, then Buyer shall immediately transfer the portion of the proposed amount as to which there is a dispute (30)-day period, the Parent and Equityholders’ Representative shall resolve such dispute in accordance with the procedure described in Section 12.11. Notwithstanding anything “Proposed Set Off Amount”) to the contrary Escrow Agent. The Escrow Agent shall disburse the Proposed Set Off Amount upon the earlier of (i) the receipt of joint written instructions from Buyer and the Company authorizing it to disburse the Proposed Set Off Amount, or a portion thereof, and indicating the recipient or recipient of such amount, or (ii) the delivery of a final and non-appealable judgment setting forth the manner in this Agreement, Parent shall be entitled to withhold and retain which the amount Proposed Set Off Amount is to be set off described in the Set Off Notice until any pending disputes as to the amount to be set off are resolved in accordance with the preceding sentencesdisbursed.