Common use of Holdback Amount Clause in Contracts

Holdback Amount. Notwithstanding anything to the contrary herein, each Seller hereby acknowledges and agrees that the Holdback Amount of such Seller shall be withheld from the Purchase Price of such Seller by the Purchaser. Within ten (10) Business Days from the date of the earliest occurrence of any of the following (each, a “Payment Event”), the Purchaser shall pay the Holdback Amount of such Seller to the account of such Seller as set forth in Schedule A hereto: (a) the relevant Governmental Authority confirms to the Company in writing that the Termination Report has been approved (to the extent the status of the Termination Report in China Securities Regulatory Commission’s online filing system is shown as “confirmed”, that shall be deemed written approval by the relevant Governmental Authority), the China Concept Stock status of the Company has been terminated, or the relevant Governmental Authority has no further comment or question relating to the Termination Report; (b) no oral or written feedback or inquiries with respect to the Termination Report have been received from any relevant Governmental Authority within the four (4) months after the filing date of the Termination Report; or (c) to the extent any oral or written inquiries or feedback have been received from any relevant Governmental Authority within such four (4)-month period referenced in sub-clause (b) above, as of the date that is four (4) months after the date of the Issuer’s last submission of written responses as requested by such relevant Governmental Authority responding to such inquiries and feedback (or, if no such written responses have been requested to be submitted, as of the date that is four (4) months after the date of the filing date of the Termination Report), all outstanding inquiries or feedback from such relevant Governmental Authority have been responded to. Except for the suspension of the Purchaser’s obligation to pay the Holdback Amount on the conditions as provided above, the Purchaser shall not be entitled to terminate, rescind, unwind or otherwise cancel any of the transactions contemplated by this Agreement nor have any other right or claim against any of the Seller Parties if, at any time after the Closing, any relevant Governmental Authority provides any feedback or makes any inquiries with respect to the Termination Report or informs the Issuer that the China Concept Stock (中概股) status of the Issuer has not and will not be terminated; provided that, the Purchaser’s obligation to pay any Holdback Amount shall be suspended if and only if, prior to the occurrence of any Payment Event, the relevant Government Authority expressly rejects, objects to, or otherwise explicitly indicates in writing that it will not accept the Termination Report; provided further that, the Purchaser’s obligation to pay the Holdback Amount shall be automatically re-instated if such rejection, objection or indication is subsequently expressly revoked by the relevant Governmental Authority (whether in writing or in any other manners, and in any case the Issuer shall provide reasonable evidence of such express revocation to the extent practicable), and such express revocation by the relevant Governmental Authority shall constitute a Payment Event. For the avoidance of doubt, the Purchaser shall be and only be obligated to pay the Holdback Amount if a Payment Event occurs.

Holdback Amount. Notwithstanding anything (a) The Closing Purchase Price paid at Closing will reflect a deduction equal to the contrary herein, each Seller hereby acknowledges and agrees that the Holdback Amount of such Seller shall as may be withheld from the Purchase Price of such Seller by the Purchaserincreased pursuant to Schedule 1.6. Within ten (10) Business Days from 90 days following the date first anniversary of the earliest occurrence of any Closing Date, the Buyer will determine the aggregate amounts related to, incurred or paid in connection with or resulting from returns of, and credits related to, Roccat products or merchandise that were sold prior to the Closing (the “Return Expense”) and will provide the Sellers Representative with a written statement setting forth its calculation of the following Return Expense (each, a the “Payment EventReturns Statement”), . (b) If the Purchaser shall pay Sellers disagrees with any part of the Holdback Amount Buyer’s calculation of such Seller to the account of such Seller Return Expense as set forth in Schedule A hereto: the Returns Statement, Roccat will, within thirty (a30) days after the relevant Governmental Authority confirms receipt of the Returns Statement with the Sellers Representative, notify the Buyer in writing of such disagreement by setting forth the Sellers’s calculation of the Return Expense, including each of the components thereof, and describing in reasonable detail the basis for such disagreement. In the event that the Buyer and Roccat are unable to resolve all such disagreements within thirty (30) days after the Sellers Representative’s receipt of the Returns Statement, the Buyer and Roccat will submit such remaining disagreements to the Company in writing that the Termination Report has been approved (to the extent the status of the Termination Report in China Securities Regulatory Commission’s online filing system is shown as “confirmed”, that shall be deemed written approval by the relevant Governmental Authority), the China Concept Stock status of the Company has been terminated, or the relevant Governmental Authority has no further comment or question relating to the Termination Report; (b) no oral or written feedback or inquiries Valuation Firm. The Valuation Firm will make a final and binding determination with respect to the Termination Report computation of the Return Expense, to the extent such amounts are in dispute. The Valuation Firm will consider only those items and amounts in the respective calculations of the Return Expense of the Buyer and Roccat, including each of the components thereof, that are identified as being items and amounts to which the Buyer and Roccat have been received from unable to agree. In resolving any relevant Governmental Authority within disputed item, the four (4) months after Valuation Firm may not assign a value to any item greater than the filing date greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Valuation Firm’s determination of the Termination Report; orReturn Expense, including each of the components thereof, will be based solely on written materials submitted by the Buyer and Roccat (i.e., not on independent review) and on the definitions included herein. The determination of the Valuation Firm will be conclusive and binding upon the parties hereto and will not be subject to appeal or further review. The costs and expenses of the Valuation Firm in determining the Return Expense will be borne by the Buyer and the Sellers consistent with the methodology set forth in Section 1.5(f). (c) If the final determination of the Return Expense is less than the Holdback Amount, then the Buyer will (i) retain an amount equal to the extent any oral or written inquiries or feedback have been received from any relevant Governmental Authority within such four Return Expense, and (4)-month period referenced in sub-clause ii) pay to the Sellers the amount (bif any) above, as by which the amount of the date that is four (4) months after the date of the Issuer’s last submission of written responses as requested by such relevant Governmental Authority responding to such inquiries and feedback (or, if no such written responses have been requested to be submitted, as of the date that is four (4) months after the date of the filing date of the Termination Report), all outstanding inquiries or feedback from such relevant Governmental Authority have been responded to. Except for the suspension of the Purchaser’s obligation to pay the Holdback Amount on is greater than the conditions as provided aboveReturn Expense. If the final determination of the Return Expense is greater than the Holdback Amount, then the Purchaser shall not Buyer will (i) retain the Holdback Amount, and (ii) be entitled to terminate, rescind, unwind recover any excess from the Indemnification Escrow Amount or otherwise cancel any of the transactions contemplated by this Agreement nor have any other right or claim setting off against any of the Seller Parties if, at any time after the Closing, any relevant Governmental Authority provides any feedback or makes any inquiries with respect to the Termination Report or informs the Issuer that the China Concept Stock (中概股) status of the Issuer has not and will not be terminated; provided that, the Purchaser’s obligation to pay any Holdback Amount shall be suspended if and only if, prior to the occurrence of any Payment Event, the relevant Government Authority expressly rejects, objects to, or otherwise explicitly indicates in writing that it will not accept the Termination Report; provided further that, the Purchaser’s obligation to pay the Holdback Amount shall be automatically re-instated if such rejection, objection or indication is subsequently expressly revoked by the relevant Governmental Authority (whether in writing or in any other manners, and in any case the Issuer shall provide reasonable evidence of such express revocation to the extent practicable), and such express revocation by the relevant Governmental Authority shall constitute a Payment Event. For the avoidance of doubt, the Purchaser shall be and only be obligated to pay the Holdback Amount if a Payment Event occursContingent Payments.

Holdback Amount. Notwithstanding anything As security for any amounts payable by the Seller to the contrary hereinPurchaser pursuant to the terms of this Agreement, each and as security for any failure of the Seller hereby acknowledges to perform its obligations under the Amended API Supply Agreement, including specifically, among other things, payment and agrees that on‑time delivery, the Purchaser shall retain out of the Cash Consideration payable pursuant to Clause 3.1 an amount equal to *** (the “Holdback Amount”). In addition to its other rights and remedies under this Agreement and applicable Law, the Purchaser shall have a full right of set-off and may apply all or any part of the Holdback Amount to pay, or to provide for the payment of, (i) any amount required to be paid by the Seller to the Purchaser under the terms of such this Agreement or (ii) any damages arising from any failure of the Seller to perform its obligations under the Amended API Supply Agreement, subject to the limitations set forth therein. The Purchaser’s right of set-off shall be withheld from the Purchase Price of such Seller applicable to amounts that are determined in good faith by the Purchaser. Within ten (10) Business Days Purchaser to be payable by the Seller pursuant to the terms of this Agreement or as damages arising from the date any failure of the earliest occurrence Seller to perform its obligations under the Amended API Supply Agreement, subject to the limitations set forth therein. Subject to the provisions of any of the following (each, a “Payment Event”)this Agreement, the Purchaser shall pay the unapplied Holdback Amount of such Seller (without any interest) to the account Seller on the 18 (eighteen) month anniversary of such Seller as set forth in Schedule A hereto: (a) the relevant Governmental Authority confirms Closing Date. If any Claim Notice has been delivered by the Purchaser to the Company in writing that Seller and the Termination Report has been approved (to the extent the status of the Termination Report in China Securities Regulatory Commission’s online filing system is shown as “confirmed”, that shall be deemed written approval by the relevant Governmental Authority), the China Concept Stock status of the Company has been terminated, or the relevant Governmental Authority has no further comment or question relating to the Termination Report; (b) no oral or written feedback or inquiries Parties have not reached an agreement with respect to the Termination Report have been received from any relevant Governmental Authority within the four (4) months after the filing date of the Termination Report; or (c) to the extent any oral or written inquiries or feedback have been received from any relevant Governmental Authority within such four (4)-month period referenced in sub-clause (b) above, as of the date that is four (4) months after the date of the Issuer’s last submission of written responses as requested by such relevant Governmental Authority responding to such inquiries and feedback (or, if no such written responses have been requested to be submitted, as of the date that is four (4) months after the date of the filing date of the Termination Report), all outstanding inquiries or feedback from such relevant Governmental Authority have been responded to. Except for the suspension of the Purchaser’s obligation entitlement to pay receive the Holdback Amount on the conditions as provided aboveLosses at issue in such Claim Notice, the Purchaser shall not be entitled to terminate, rescind, unwind or otherwise cancel any of the transactions contemplated by this Agreement nor have any other right or claim against any of the Seller Parties if, at any time after the Closing, any relevant Governmental Authority provides any feedback or makes any inquiries with respect to the Termination Report or informs the Issuer that the China Concept Stock (中概股) status of the Issuer has not and will not be terminated; provided that, then the Purchaser’s obligation to pay any installment of the unapplied Holdback Amount shall be suspended if and only if, prior with respect to Purchaser’s good faith estimate of the occurrence of any Payment Event, amount owed by the relevant Government Authority expressly rejects, objects to, or otherwise explicitly indicates in writing that it will not accept Seller under the Termination Report; provided further that, Claim Notice until a final determination as to the Purchaser’s obligation entitlement to pay receive the Losses covered by the applicable Claim Notice has been reached. These payments shall be reduced, in the order of their maturities, by any amounts payable by the Seller pursuant to the terms of this Agreement or as damages arising from any failure of the Seller to perform its obligations under the Amended API Supply Agreement. Nothing in this Clause 7.4 shall be construed as limiting the Liability of the Seller under this Agreement to the amount of the Holdback Amount, nor shall the Holdback Amount shall be automatically re-instated if such rejection, objection considered as liquidated damages for any breach under this Agreement or indication is subsequently expressly revoked by the relevant Governmental Authority (whether in writing or in any other manners, and in any case the Issuer shall provide reasonable evidence of such express revocation to the extent practicable), and such express revocation by the relevant Governmental Authority shall constitute a Payment EventAmended API Supply Agreement. For the avoidance of doubt, the Purchaser shall be and only be obligated to pay the Holdback Amount if a Payment Event occurs.8.1 Tax Matters

Holdback Amount. Notwithstanding anything As security for any amounts payable by the Seller to the contrary hereinPurchaser pursuant to the terms of this Agreement, each and as security for any failure of the Seller hereby acknowledges to perform its obligations under the Amended API Supply Agreement, including specifically, among other things, payment and agrees that on-time delivery, the Purchaser shall retain out of the Cash Consideration payable pursuant to Clause 3.1 an amount equal to *** (the “Holdback Amount”). In addition to its other rights and remedies under this Agreement and applicable Law, the Purchaser shall have a full right of set-off and may apply all or any part of the Holdback Amount to pay, or to provide for the payment of, (i) any amount required to be paid by the Seller to the Purchaser under the terms of such this Agreement or (ii) any damages arising from any failure of the Seller to perform its obligations under the Amended API Supply Agreement, subject to the limitations set forth therein. The Purchaser’s right of set-off shall be withheld from the Purchase Price of such Seller applicable to amounts that are determined in good faith by the Purchaser. Within ten (10) Business Days Purchaser to be payable by the Seller pursuant to the terms of this Agreement or as damages arising from the date any failure of the earliest occurrence Seller to perform its obligations under the Amended API Supply Agreement, subject to the limitations set forth therein. Subject to the provisions of any of the following (each, a “Payment Event”)this Agreement, the Purchaser shall pay the unapplied Holdback Amount of such Seller (without any interest) to the account Seller on the 18 (eighteen) month anniversary of such Seller as set forth in Schedule A hereto: (a) the relevant Governmental Authority confirms Closing Date. If any Claim Notice has been delivered by the Purchaser to the Company in writing that Seller and the Termination Report has been approved (to the extent the status of the Termination Report in China Securities Regulatory Commission’s online filing system is shown as “confirmed”, that shall be deemed written approval by the relevant Governmental Authority), the China Concept Stock status of the Company has been terminated, or the relevant Governmental Authority has no further comment or question relating to the Termination Report; (b) no oral or written feedback or inquiries Parties have not reached an agreement with respect to the Termination Report have been received from any relevant Governmental Authority within the four (4) months after the filing date of the Termination Report; or (c) to the extent any oral or written inquiries or feedback have been received from any relevant Governmental Authority within such four (4)-month period referenced in sub-clause (b) above, as of the date that is four (4) months after the date of the Issuer’s last submission of written responses as requested by such relevant Governmental Authority responding to such inquiries and feedback (or, if no such written responses have been requested to be submitted, as of the date that is four (4) months after the date of the filing date of the Termination Report), all outstanding inquiries or feedback from such relevant Governmental Authority have been responded to. Except for the suspension of the Purchaser’s obligation entitlement to pay receive the Holdback Amount on the conditions as provided aboveLosses at issue in such Claim Notice, the Purchaser shall not be entitled to terminate, rescind, unwind or otherwise cancel any of the transactions contemplated by this Agreement nor have any other right or claim against any of the Seller Parties if, at any time after the Closing, any relevant Governmental Authority provides any feedback or makes any inquiries with respect to the Termination Report or informs the Issuer that the China Concept Stock (中概股) status of the Issuer has not and will not be terminated; provided that, then the Purchaser’s obligation to pay any installment of the unapplied Holdback Amount shall be suspended if and only if, prior with respect to Purchaser’s good faith estimate of the occurrence of any Payment Event, amount owed by the relevant Government Authority expressly rejects, objects to, or otherwise explicitly indicates in writing that it will not accept Seller under the Termination Report; provided further that, Claim Notice until a final determination as to the Purchaser’s obligation entitlement to pay receive the Losses covered by the applicable Claim Notice has been reached. These payments shall be reduced, in the order of their maturities, by any amounts payable by the Seller pursuant to the terms of this Agreement or as damages arising from any failure of the Seller to perform its obligations under the Amended API Supply Agreement. Nothing in this Clause 7.4 shall be construed as limiting the Liability of the Seller under this Agreement to the amount of the Holdback Amount, nor shall the Holdback Amount shall be automatically re-instated if such rejection, objection considered as liquidated damages for any breach under this Agreement or indication is subsequently expressly revoked by the relevant Governmental Authority (whether in writing or in any other manners, and in any case the Issuer shall provide reasonable evidence of such express revocation to the extent practicable), and such express revocation by the relevant Governmental Authority shall constitute a Payment Event. For the avoidance of doubt, the Purchaser shall be and only be obligated to pay the Holdback Amount if a Payment Event occursAmended API Supply Agreement.