Common use of Satisfaction of Claims Clause in Contracts

Satisfaction of Claims. Upon (i) mutual agreement by the Indemnifying Party and Indemnified Party, or (ii) final determination of an indemnification claim in accordance with this Section 11.5, in either case as to the disposition of an indemnification claim and the amount of Losses in connection therewith, such indemnification obligation shall be satisfied by the Indemnifying Party within fifteen days thereafter. If the Indemnifying Party is the Stockholder Representative, such indemnification obligation shall be satisfied by the Stockholder Representative (i) by executing and delivering to Purchaser joint written instructions to the Escrow Agent for countersignature by Purchaser, instructing the Escrow Agent to release to Purchaser, out of the Escrow Dividends (if any) and the Indemnity Shares Amount, (A) first, the amount of the Escrow Dividends (up to the amount of such indemnified Loss) and (B) second, if the Escrow Dividends are insufficient, the number of shares (the “Indemnification Shares”) equal to the remaining amount of indemnified Losses in respect of such claim divided by the Purchaser Share Price or (ii) by Purchaser’s delivery of a final determination of an indemnification claim in accordance with this Section 11.5 in accordance with the terms of the Escrow Agreement to the Escrow Agent. If the Indemnifying Party is Purchaser, such indemnification obligation shall be satisfied by payment in immediately available funds in the amount of the finally determined Loss to the Exchange Agent, accompanied by a written instruction from Purchaser to the Exchange Agent directing the Exchange Agent to disburse such funds to the Company Stockholders (other than holders of Dissenting Shares) in accordance with their Pro Rata Portions as set forth in the Estimated Adjustment Statement, provided that such Company Stockholder has delivered a duly executed Letter of Transmittal to the Exchange Agent and any other required documents in accordance with Section 3.2.

Satisfaction of Claims. Upon Subject to the further provisions of this Section 8.6 as to disputed indemnity claims, any amounts payable by an Indemnitor pursuant to this Article VIII shall be delivered by wire transfer in immediately available funds not later than three (3) business days after notice by Indemnitee to Indemnitor of the amount due. In the event of a dispute as to whether Indemnitor is obligated to indemnify Indemnitee hereunder (an “Indemnity Dispute”), Indemnitor may (a) pay indemnity obligations as they arise, and reserve the right to dispute the indemnity obligations hereunder, or (b) decline to make indemnity payments and, in the case of either clause (a) or (b), either Indemnitor or Indemnitee may commence an Action (subject to Section 10.1 of this Agreement) to determine Indemnitor’s indemnity obligations. Any obligation to pay amounts pursuant to this Article VIII shall bear interest at LIBOR plus 4% from the date (i) mutual agreement the Loss amounts, if any, required to be indemnified by this Article VIII, were paid or incurred by the Indemnifying Party Indemnitee and Indemnified Party, or (ii) final determination the Loss amounts, if any, were actually paid by the Indemnitor to the Indemnitee and ultimately required to be repaid by the Indemnitee because such Loss amounts fall outside the scope of this Article VIII. In the event of an indemnification claim in accordance with Indemnity Dispute, Indemnitor and Indemnitee shall have all the rights and remedies available under this Agreement and applicable Law, provided further, if Equityholder breaches its payment obligations under this Section 11.58.6 (which payment is agreed by the parties or, in either case as to if such payment was the disposition subject of an indemnification claim and Indemnity Dispute, on the amount of Losses in connection therewith, such indemnification obligation shall be satisfied by the Indemnifying Party within fifteen days thereafter. If the Indemnifying Party is the Stockholder Representative, such indemnification obligation shall be satisfied by the Stockholder Representative (i) by executing and delivering to Purchaser joint written instructions to the Escrow Agent for countersignature by Purchaser, instructing the Escrow Agent to release to Purchaser, out date of the Escrow Dividends (if any) and the Indemnity Shares Amount, (A) first, the amount of the Escrow Dividends (up to the amount of such indemnified Loss) and (B) second, if the Escrow Dividends are insufficient, the number of shares (the “Indemnification Shares”) equal to the remaining amount of indemnified Losses final judgment in respect of such claim divided by the Purchaser Share Price or (ii) by Purchaser’s delivery of a final determination of an indemnification claim in accordance with this Section 11.5 in accordance with the terms of the Escrow Agreement Indemnity Dispute), Buyer shall be entitled to the Escrow Agent. If the Indemnifying Party is Purchaser, such indemnification obligation shall be satisfied by payment in immediately available funds in the amount of the finally determined Loss to the Exchange Agent, accompanied by a written instruction from Purchaser to the Exchange Agent directing the Exchange Agent to disburse such funds to the Company Stockholders (other than holders of Dissenting Shares) in accordance with their Pro Rata Portions as remedy set forth in Section 9.11 of the Estimated Adjustment Statement, provided that such Company Stockholder has delivered a duly executed Letter of Transmittal to the Exchange Agent and any other required documents in accordance with Section 3.2Operating Agreement.

Satisfaction of Claims. Upon In the event of an Unobjected Claim or a Settlement Memorandum, with respect to claims pursuant to Section 10.2(a) or Section 10.2(b), Acquiror and the Securityholder Representative shall, subject to the limitations set forth in Section 10.3, as promptly as practicable thereafter, arrange for the cancellation or release, as applicable, of the applicable portion of the Indemnity Escrow Available Recourse (an “Indemnity Claim Release”). The Indemnity Escrow Available Recourse shall be released (i) mutual agreement in the case of Indemnity Escrow Substitute RSUs, by cancellation of the Indemnifying Party and Indemnified Partyapplicable portion thereof by Acquiror, or (ii) final determination in the case of Indemnity Escrow Substitute Options, by cancellation of the applicable portion thereof by Acquiror and (iii) in the case of Indemnity Escrow Shares, by release to Acquiror of the applicable number of Indemnity Escrow Shares from the Indemnity Escrow Fund. All distributions from the Indemnity Escrow Available Recourse shall be made based on each Indemnifying Party’s Pro Rata Indemnity Escrow Portion of Acquiror’s Losses. In the event of an indemnification claim in accordance with this Section 11.5Indemnity Claim Release, in either case as Acquiror and the Securityholder Representative shall deliver a joint written instruction to the disposition Escrow Agent (a “Release Instruction”) to release a specified number of an indemnification claim Indemnity Escrow Shares to Acquiror, which shall include the number of Indemnity Escrow Shares to be released from the Indemnity Escrow Fund and the amount number of Losses Indemnity Escrow Substitute RSUs to be cancelled by Acquiror in connection therewithwith such Indemnity Claim Release. With respect to any Indemnifying Parties whose Indemnity Escrow Equity is subject to vesting, such indemnification obligation the Indemnity Escrow Shares, the Indemnity Escrow Substitute Options and the Indemnity Escrow Substitute RSUs to be released or cancelled, as applicable, shall be satisfied by the Indemnifying Party within fifteen days thereafter. If the Indemnifying Party is the Stockholder Representative, such indemnification obligation shall be satisfied by the Stockholder Representative (i) by executing first, releasing Indemnity Escrow Shares in reverse chronological order of latest vesting, (ii) second, cancelling Indemnity Escrow Substitute RSUs in reverse chronological order of latest to satisfy time-based vesting requirements under Section 1.1(h)(ii), (iii) third, cancelling Indemnity Escrow Substitute Options and delivering (iv) fourth, releasing Indemnity Escrow Shares which are not subject to Purchaser joint written instructions to the Escrow Agent for countersignature by Purchaservesting, instructing the Escrow Agent to release to Purchaser, out of the Escrow Dividends (if any) and the Indemnity Shares AmountEscrow Shares, Indemnity Escrow Substitute RSUs and Indemnity Escrow Substitute Options to be so released or cancelled, as applicable, shall have an aggregate value (Awith each Indemnity Escrow Share and each Indemnity Escrow Substitute RSU being valued at the Acquiror Share Deemed Value and each Indemnity Escrow Substitute Option being valued at the Acquiror Share Deemed Value minus the amount of the exercise price of such Indemnity Escrow Substitute Option) firstequal to, in the aggregate, the amount of the Escrow Dividends (up to the amount of such indemnified Loss) and (B) second, if the Escrow Dividends are insufficient, the number of shares (the “Indemnification Shares”) equal to the remaining amount of indemnified Acquiror Losses in respect of such claim divided by the Purchaser Share Price or (ii) by Purchaser’s delivery of a final determination of an indemnification claim in accordance with this Section 11.5 in accordance with the terms of the Escrow Agreement to the Escrow Agent. If the Indemnifying Party is Purchaser, such indemnification obligation shall be satisfied by payment in immediately available funds in the amount of the finally determined Loss to the Exchange Agent, accompanied by a written instruction from Purchaser to the Exchange Agent directing the Exchange Agent to disburse such funds to the Company Stockholders (other than holders of Dissenting Shares) in accordance with their Pro Rata Portions as set forth in the Estimated Adjustment StatementClaim Notice with respect to an Unobjected Claim or in the Settlement Memorandum the release of which by the Escrow Agent or cancellation of which by Acquiror, provided that such Company Stockholder has delivered a duly executed Letter as applicable. The release of Transmittal Indemnity Escrow Shares to Acquiror and the cancellation by Acquiror of Indemnity Escrow Substitute Options and Indemnity Escrow Substitute RSUs as contemplated in this Section 10.4(d), shall satisfy the payment obligation to each Indemnified Party, and, if the value of the Indemnity Escrow Shares, Indemnity Escrow Substitute Options and Indemnity Escrow Substitute RSUs then remaining in the Indemnity Escrow Available Recourse is insufficient to cover the full amount of Acquiror Losses set forth in the Claim Notice with respect to an Unobjected Claim or in the Settlement Memorandum, each Indemnifying Party shall, subject to the Exchange Agent and limitations set forth in this Article X, within thirty (30) days, pay in cash such Indemnifying Party’s Pro Rata Portion of such Acquiror Losses to Acquiror in excess of the aggregate amount remaining in the Indemnity Escrow Available Recourse in satisfaction of each Indemnified Party’s portion of the applicable Acquiror Losses. For clarity, any other required documents in accordance with Indemnity Escrow Substitute RSU that has not satisfied the time-based vesting requirements under Section 3.21.1(h)(ii) as of the date of such release will continue to remain subject to the time-based vesting requirements set forth therein.”

Satisfaction of Claims. Upon Claims for indemnification pursuant to this Section 7.1 shall be satisfied (i) mutual agreement by first, from the Indemnifying Party and Indemnified PartyIndemnification Holdback Amount, or to the extent of the amount then remaining thereof, (ii) final determination second, and solely to the extent the Buyer Indemnitees are entitled to indemnification in excess of an indemnification the Indemnification Holdback Amount with respect to such claim in accordance with pursuant to the provisions of this Section 11.57.1, in either case as directly against Seller and the Principal Members, jointly and severally and (iii) third, solely to the disposition extent the Buyer Indemnitees are entitled to indemnification in excess of an indemnification the Indemnification Holdback Amount with respect to such claim and the amount of Losses in connection therewith, such indemnification obligation shall be satisfied by the Indemnifying Party within fifteen days thereafter. If the Indemnifying Party is the Stockholder Representative, such indemnification obligation shall be satisfied by the Stockholder Representative (i) by executing and delivering to Purchaser joint written instructions pursuant to the Escrow Agent for countersignature provisions of this Section 7.1, by Purchaser, instructing the Escrow Agent to release to Purchaser, out of the Escrow Dividends (if any) and the Indemnity Shares Amount, setting off any such amounts against (A) first, the amount of the Escrow Dividends any Earnout Payments (up to the amount resulting in a reduction of such indemnified Loss) Earnout Payments), if any, as such Earnout Payments become due and payable pursuant Section 2.6 and (B) secondPayable Consent Pro-Rata Amounts, if any, as such Payable Consent-Pro Rata Amounts become due and payable pursuant to Section 2.5; provided, however, that, notwithstanding the Escrow Dividends are insufficientforegoing or the provisions of Section 7.1(b)(ii), the number of shares (the “Indemnification Shares”) equal to the remaining amount of indemnified Losses claims or recoveries in respect of such claim divided any fraud or intentional misrepresentation by Seller or any Principal Member of a representation or warranty contained in this Agreement, in the Purchaser Share Price sole and absolute discretion of the Buyer Indemnitees, either or in combination (w) from the Indemnification Holdback Amount (x) directly against Seller and each Principal Member, jointly and severally, (y) by setoff against any Earnout Payments that may become due and payable pursuant to Section 2.6 or (iiz) by Purchaserset off against any Payable Consent Pro-Rata Amount that may become due and payable pursuant to Section 2.5. Notwithstanding anything to the contrary herein, the aggregate liability of each Member for Losses shall be limited to the product of (A) each Member’s delivery Pro Rata Amount multiplied by (B) the Purchase Price; provided, however, that Losses for fraud or intentional misrepresentation of a final determination of an indemnification claim in accordance with this Section 11.5 in accordance with the terms of the Escrow Agreement to the Escrow Agent. If the Indemnifying Party is Purchaser, such indemnification obligation Member shall be satisfied by payment in immediately available funds in the amount of the finally determined Loss to the Exchange Agent, accompanied by a written instruction from Purchaser to the Exchange Agent directing the Exchange Agent to disburse unlimited for such funds to the Company Stockholders (other than holders of Dissenting Shares) in accordance with their Pro Rata Portions as set forth in the Estimated Adjustment Statement, provided that such Company Stockholder has delivered a duly executed Letter of Transmittal to the Exchange Agent and any other required documents in accordance with Section 3.2Member.

Satisfaction of Claims. Upon (i) mutual agreement If a Notice of Claim is given during the term hereof and Interland and the Escrow Agent do not receive, within 30 business days after the Notice of Claim was received by the Indemnifying Party Escrow Agent, a notice from the Shareholders (the "Shareholders' Notice") stating that a dispute (the "Dispute") exists relating to the Notice of Claim and Indemnified Partythe basis of such Dispute in reasonable detail to enable Interland to evaluate the Dispute, or Escrow Agent shall promptly, on the 31st business day after the Escrow Agent's receipt of the Notice of Claim, release from escrow for transfer to Interland that number of Escrow Shares equal to the quotient of (A) the Claim Amount, divided by (B) the average last reported price per share of Interland common stock (as reported in The Wall Street Journal) (the "Market Price") for the last ten (10) trading days immediately preceding the 31st business day after the Escrow Agent's receipt of the relevant Notice of Claim. (ii) final determination If Interland and Escrow Agent receive a Shareholders' Notice within such 30 business day period, Escrow Agent shall continue to hold the Escrow Shares until such Dispute is resolved (provided, however, that in such event the Market Price shall be the average closing price per share of an indemnification claim Interland common stock as reported in accordance with this Section 11.5, in either case as to The Wall Street Journal for the disposition last ten (10) trading days immediately preceding the receipt by Escrow Agent of an indemnification claim the Shareholders' Notice). Interland and the amount of Losses Shareholders shall attempt in connection therewith, such indemnification obligation shall be satisfied by good faith to resolve the Indemnifying Party within fifteen days thereafterDispute. If the Indemnifying Party is the Stockholder RepresentativeInterland and Shareholders are able to resolve such Dispute, such indemnification obligation they shall be satisfied by the Stockholder Representative (i) by executing and delivering to Purchaser joint written instructions to the jointly notify Escrow Agent for countersignature by Purchaser, instructing the of such resolution and Escrow Agent shall promptly release from escrow for transfer to release to Purchaser, out of the Escrow Dividends (if any) and the Indemnity Shares Amount, (A) first, the amount of the Escrow Dividends (up to the amount of such indemnified Loss) and (B) second, if the Escrow Dividends are insufficient, the Interland that number of shares (the “Indemnification Shares”) equal to the remaining amount of indemnified Losses in respect of such claim divided Escrow Shares agreed upon by the Purchaser Share Price or (ii) by Purchaser’s delivery of a final determination of an indemnification claim in accordance with this Section 11.5 in accordance with the terms of the Escrow Agreement to the Escrow Agent. If the Indemnifying Party is Purchaser, such indemnification obligation shall be satisfied by payment in immediately available funds in the amount of the finally determined Loss to the Exchange Agent, accompanied by a written instruction from Purchaser to the Exchange Agent directing the Exchange Agent to disburse such funds to the Company Stockholders (other than holders of Dissenting Shares) in accordance with their Pro Rata Portions Interland and Shareholders as set forth in the Estimated Adjustment Statementjoint notice, provided that such Company Stockholder has delivered a duly executed Letter of Transmittal which Interland and Shareholders hereby agree shall equal to the Exchange quotient of the final amount Interland and Shareholders determine is owed to Interland, if any, divided by the Market Price. If the Shareholders and Interland fail to resolve the Dispute within 30 calendar days after Interland and Escrow Agent receive the Shareholders' Notice, the Dispute may at any time thereafter be submitted by Interland or the Shareholders to arbitration in Atlanta, Georgia before a single arbitrator reasonably acceptable to both Interland and any other required documents the Shareholders in accordance with Section 3.2the Commercial Arbitration Rules of the American Arbitration Association then in effect. Interland and the Shareholders will equally split the cost of the arbitration filing and hearing fees, and the arbitrator will have authority to award attorneys' fees to the prevailing party. Interland and the Shareholders agree that the arbitrator's award shall be final and binding upon them with respect to the Dispute and judgment may be entered thereon in any court having jurisdiction thereof; provided, however, that notwithstanding any provision contained herein to the contrary the parties hereto may settle any dispute by mutual agreement at any time. Interland and the Shareholders agree that promptly after the issuance of such final award by the arbitrator, Escrow Agent shall release from escrow for transfer to Interland that number of Escrow Shares equal to the quotient of the final amount of such award that was awarded to Interland by the arbitrator, if any, divided by the Market Price.