Common use of Offset Right Clause in Contracts

Offset Right. Notwithstanding anything to the contrary contained herein, the SPE Shareholders shall have the right to off-set, on a pro rata basis, the amount of any unrecouped claim for Losses the SPE Shareholders or any of their Indemnified Parties may have pursuant to the provisions of this Section 7 or pursuant to Article X of the Share Purchase and Subscription Agreement against any amounts due and payable by them to the Non-SPE Shareholders, including in respect of the Call Price, if (a) a Adjudicated Decision is issued that entitles the SPE Shareholders to compensation or reimbursement for any Losses, or (b) if the SPE Shareholders notify the Non-SPE Shareholders’ Representative of any Losses that are not subject to any Adjudicated Decision (by written notice including reasonable details and supporting documentation concerning the grounds for the Losses), in which case the SPE Shareholders shall be entitled to deduct the amount of such Losses from such amounts due and payable to the Non-SPE shareholders prior to the payment thereof to the Non-SPE Shareholders hereunder and deposit such amount in an interest bearing escrow account. The escrow account shall be established with Citibank, or other bank designated by the SPE Shareholders, to be held until such time as a Adjudicated Decision is issued that entitles the SPE Shareholders to compensation or reimbursement for any Losses or pursuant to a mutual settlement agreement of the Parties, at which time the funds in the escrow account shall be distributed in accordance with the Adjudicated Decision or the mutual settlement agreement, as applicable. In addition, the SPE Shareholders shall be entitled to receive, and the Non-SPE shareholders shall direct that the Company shall pay on a pro rata basis to the SPE Shareholders or the escrow agent, as applicable, any such unrecouped claim for Losses on the same basis as set forth above, and the Non-SPE Shareholders shall be deemed to waive their rights to such dividends. Any such off-set or payment direction shall be made in good faith and only if the SPE Shareholders have delivered to the Non-SPE Shareholders a reasonably detailed notice of the basis for such off-set or payment direction, at least three Business Days prior to the due date for payment of such amount. The Non-SPE Shareholders agree and confirm that they shall take all steps as are required under applicable Law to effectuate the offset right of the SPE Shareholders and the Indemnified Parties as set out in this Section 7.3(c), including making applications for statutory consents as may be required (e.g., for establishment of an escrow account).

Offset Right. Notwithstanding anything to the contrary contained herein, the SPE Shareholders shall have the right to off-set, on a pro rata basis, the amount of any unrecouped claim for Losses the SPE Shareholders or any of their Indemnified Parties may have pursuant to the provisions of this Section 7 or pursuant to Article X of the Share Purchase and Subscription Agreement against any amounts due and payable by them to the Non-SPE Shareholders, including in respect of the Call Price, if (a) a Adjudicated Decision is issued that entitles the SPE Shareholders to compensation or reimbursement for any Losses, or (b) if the SPE Shareholders notify the Non-SPE Shareholders’ Representative of any Losses that are not subject to any Adjudicated Decision (by written notice including reasonable details and supporting documentation concerning the grounds for the Losses), in which case the SPE Shareholders shall be entitled to deduct the amount of such Losses from such amounts due and payable to the Non-SPE shareholders prior to the payment thereof to the Non-SPE Shareholders hereunder and deposit such amount in an interest bearing escrow account. The escrow account shall be established with Citibank, or other bank designated by the SPE Shareholders, to be held until such time as a Adjudicated Decision is issued that entitles the SPE Shareholders to compensation or reimbursement for any Losses or pursuant to a mutual settlement agreement of the Parties, at which time the funds in the escrow account shall be distributed in accordance with the Adjudicated Decision or the mutual settlement agreement, as applicable. In addition, the SPE Shareholders shall be entitled to receive, and the Non-SPE shareholders shall direct that the Company shall pay on a pro rata basis to the SPE Shareholders or the escrow agent, as applicable, any such unrecouped claim for Losses on the same basis as set forth above, and the Non-SPE Shareholders shall be deemed to waive their rights to such dividends. Any such off-set or payment direction shall be made in good faith and only if the SPE Shareholders have delivered to the Non-SPE Shareholders a reasonably detailed notice of the basis for such off-set or payment direction, at least three Business Days prior to the due date for payment of such amount. The Non-SPE Shareholders agree and confirm that they shall take all steps as are required under applicable Law to effectuate the offset right of the SPE Shareholders and the Indemnified Parties as set out in this Section 7.3(c), including making applications for statutory consents as may be required (e.g., for establishment of an escrow account).

Offset Right. Notwithstanding anything (a) Without limiting any other remedies of the Buyer Indemnified Persons, from and after the Effective Date, and subject to the contrary contained hereinlimitations set forth in this Article VII, the SPE Shareholders Buyer Indemnified Persons shall have be entitled to recover (the right “Offset Right”) (i) against the value of the shares of Buyer Common Stock issuable to offthe Sellers pursuant to Section 2.1(b)(ii) or to become exercisable by the Employee Optionholders pursuant to Section 2.2(a)(iii) (i.e., all of the Hold-set, on a pro rata basisBack Shares in respect of the aggregate Hold-Back Amount for all Sellers), the amount of any unrecouped claim for Losses Damages as to which the SPE Shareholders Sellers are obligated to indemnify and hold the Buyer Indemnified Persons harmless from under Section 7.1(a), and (ii) against the value of the shares of Buyer Common Stock issuable to any specific Seller pursuant to Section 2.1(b)(ii) (as it would be applied to such specific Seller) or to become exercisable by any specific Employee Optionholder pursuant to Section 2.2(a)(iii) (as it would be applied to such specific Employee Optionholder), the amount of any Damages as to which such Seller is obligated to indemnify and hold the Buyer Indemnified Persons harmless from under Section 7.1(b). (b) To exercise the Offset Right, Buyer shall (on behalf of Buyer or any other Buyer Indemnified Persons at issue), prior to the Hold-Back Payment Date, deliver to the Sellers’ Agent at the notice address set forth in Section 8.4 (as the same may be amended from time to time as provided therein and including all Persons to be copied on any notice to the Sellers’ Agent), a certificate signed by Buyer (an “Offset Certificate”): (i) stating in good faith that one or more of their the Buyer Indemnified Parties may have Persons has suffered or incurred Damages which are entitled to be recovered pursuant to the provisions Offset Right (the “Stated Damages”); and (ii) specifying to the extent practicable in reasonable detail the individual items of this Stated Damages and the nature of the breach or other circumstance to which each such item is related. Upon the timely delivery of an Offset Certificate stating a bona fide claim for Stated Damages, any issuance of shares of Buyer’s Common Stock shall be stayed to the extent of the Stated Damages as provided in Section 7 or 2.1(c). (c) After the expiration of a period of thirty (30) days following the time of delivery of an Offset Certificate to the Sellers’ Agent, the Offset Right shall be deemed perfected as to the applicable Stated Damages and the value of the shares of Buyer Common Stock issuable to the Sellers pursuant to Article X of the Share Purchase and Subscription Agreement against any amounts due and payable by them to the Non-SPE Shareholders, including in respect of the Call Price, if Section 2.1(b)(ii) (a) a Adjudicated Decision is issued that entitles the SPE Shareholders to compensation or reimbursement for any Losses, or (b) if the SPE Shareholders notify the Non-SPE Shareholders’ Representative of any Losses that are not subject to any Adjudicated Decision (by written notice including reasonable details and supporting documentation concerning the grounds for the Losses), in which case the SPE Shareholders shall be entitled to deduct the amount of such Losses from such amounts due and payable to the Non-SPE shareholders prior to the payment thereof to the Non-SPE Shareholders hereunder and deposit such amount in an interest bearing escrow account. The escrow account shall be established with Citibank, or other bank designated by the SPE Shareholders, to be held until such time as a Adjudicated Decision is issued that entitles the SPE Shareholders to compensation or reimbursement for any Losses or pursuant to a mutual settlement agreement of the Parties, at which time the funds in the escrow account shall be distributed in accordance with the Adjudicated Decision or the mutual settlement agreement, as applicable. In addition, the SPE Shareholders shall be entitled to receive, and the Non-SPE shareholders shall direct that the Company shall pay on a pro rata basis to the SPE Shareholders or the escrow agentor, as applicable, the value of the shares of Buyer Common Stock issuable to any specific Seller pursuant to Section 2.1(b)(ii) as it would be applied to such unrecouped claim for Losses on specific Seller) or to become exercisable by any specific Employee Optionholder pursuant to Section 2.2(a)(iii) (or, as applicable, the same basis value of the shares of Buyer Common Stock to become exercisable by any specific Employee Optionholder pursuant to Section 2.2(a)(iii) as set forth above, and the Non-SPE Shareholders it would be applied to such specific Employee Optionholder) or shall be deemed reduced by an equal amount unless (i) the Sellers’ Agent shall object in a written statement delivered to waive their rights Buyer to the claims made in the Offset Certificate and (ii) such dividends. Any statement shall have been delivered to Buyer prior to the expiration of such off-set or payment direction thirty (30) day period. (d) If the Sellers’ Agent shall be made timely object in writing to an exercise of the Offset Right by Buyer, the Sellers’ Agent and Buyer shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims within thirty (30) days after such objection. If the Sellers’ Agent and only if Buyer should so agree on a claim, a memorandum setting forth such agreement shall be prepared and signed by such parties, which shall include a statement of the SPE Shareholders have delivered amount of resulting reduction in value of the shares of Buyer Common Stock issuable to the Non-SPE Shareholders a reasonably detailed notice Sellers pursuant to Section 2.1(b)(ii) (or, as applicable, the value of the basis for shares of Buyer Common Stock issuable to any specific Seller pursuant to Section 2.1(b)(ii) as it would be applied to such off-set specific Seller) or payment directionto become exercisable by any specific Employee Optionholder pursuant to Section 2.2(a)(iii) (or, at least three Business Days prior as applicable, the value of the shares of Buyer Common Stock to become exercisable by any specific Employee Optionholder pursuant to Section 2.2(a)(iii) as it would be applied to such specific Employee Optionholder). (e) If no agreement can be reached after good faith negotiation between the Sellers’ Agent and Buyer pursuant to Section 7.2(d), either Buyer or the Sellers’ Agent may initiate an Action with the state or federal courts located in the City and County of San Francisco, California to resolve such dispute. The decision of any such court as to the due date for payment validity and amount of any claim in such amount. The Non-SPE Shareholders agree Offset Certificate shall be binding and confirm that they shall take all steps as are required under applicable Law to effectuate conclusive upon the offset right of the SPE Shareholders and the Indemnified Parties as set out in this Section 7.3(c), including making applications for statutory consents as may be required (e.g., for establishment of an escrow account)parties.

Offset Right. Notwithstanding anything to the contrary contained herein, the SPE Shareholders shall have the right to off-set, on a pro rata basis, the amount of any unrecouped claim for Losses the SPE Shareholders or any of their Indemnified Parties may have pursuant to the provisions of this Section 7 or pursuant to Article X of the Share Purchase and Subscription Agreement against any amounts due and payable by them to the Non-SPE Shareholders, including in respect of the Call Price, if (a) a Adjudicated Decision is issued that entitles the SPE Shareholders to compensation or reimbursement for any Losses, or (b) if the SPE Shareholders notify the Non-SPE Shareholders’ Representative of any Losses that are not subject to any Adjudicated Decision (by written notice including reasonable details and supporting documentation concerning the grounds for the Losses), in which case the SPE Shareholders shall be entitled to deduct the amount of such Losses from such amounts due and payable to the Non-SPE shareholders prior to the payment thereof to the Non-SPE Shareholders hereunder and deposit such amount in an interest bearing escrow account. The escrow account shall be established with Citibank, or other bank designated by the SPE Shareholders, to be held until such time as a Adjudicated Decision is issued that entitles the SPE Shareholders to compensation or reimbursement for any Losses or pursuant to a mutual settlement agreement of the Parties, at which time the funds in the escrow account shall be distributed in accordance with the Adjudicated Decision or the mutual settlement agreement, as applicable. In addition, the SPE Shareholders shall be entitled to receive, and the Non-SPE shareholders shall direct that the Company shall pay on a pro rata basis to the SPE Shareholders or the escrow agent, as applicable, any such unrecouped claim for Losses on the same basis as set forth above, and the Non-SPE Shareholders shall be deemed to waive their rights to such dividends. Any such off-set or payment direction shall be made in good faith and only if the SPE Shareholders have delivered to the Non-SPE Shareholders a reasonably detailed notice of the basis for such off-set or payment direction, at least three Business Days prior to the due date for payment of such amount. The Non-SPE Shareholders agree and confirm that they shall take all steps as are required under applicable Law to effectuate the offset right of the SPE Shareholders and the Indemnified Parties as set out in this Section 7.3(c), including making applications for statutory consents as may be required (e.g., for establishment of an escrow account).