Common use of Holdback Amount Clause in Contracts

Holdback Amount. Escrow Agent shall hold back in escrow from Seller’s net proceeds at Closing an amount equal to Seventy-Five Thousand Dollars ($75,000.00) (the “Holdback Amount”). The sole purpose for which the Holdback Amount may be applied is as to any amounts which Seller owes to Purchaser for post-Closing claims to the extent allowed and subject to any limitations set forth in this Agreement. For clarity, the Holdback Amount is intended as a source of payment, but not as a limitation of damages that may be claimed by Purchaser. Except as to any amounts claimed to be owed by Seller to Purchaser which amounts are specifically reflected in a lawsuit commenced against Seller within twelve (12) months after the Closing for damages based upon the post-Closing claim, Escrow Agent shall disburse the balance of the Holdback Amount to Seller immediately following the expiration of the twelve (12) month period. Prior to institution of any such lawsuit, Purchaser shall provide at least ten (10) days prior written notice to Seller, specifying the exact amount and nature of any such claim asserted by Purchaser against the Holdback Amount. Any lawsuit commenced against Seller must specifically set forth the exact amount which is claimed to be owed by Seller to Purchaser, and absent such specific amount being identified, Escrow Agent is authorized to release the entire Holdback Amount to Seller immediately following the expiration of the twelve month (12) month period post-Closing. Any portion of the Holdback Amount which Escrow Agent is entitled to retain pursuant to this Section 3.10 after the passage of the twelve (12) month period, shall continue to be held in escrow pending final and unappealable dismissal or judgment in the action or actions timely commenced by Purchaser or settled pursuant to a written agreement between Seller and Purchaser. If Purchaser obtains a final and unappealable judgment in any such action, Escrow Agent is directed to make a disbursement to Purchaser from the Holdback Amount retained in escrow in the amount of the judgment plus any interest, attorney’s fees, and costs to which it is entitled thereon upon presentation to Escrow Agent and Seller of the court order or other evidence of such final and unappealable judgment. Once all such actions are either finally or unappealably dismissed or a final and unappealable judgment is entered therein or settled pursuant to a written agreement between Seller and Purchaser, and any amount of damages due to Purchaser is paid, whether from the Holdback Amount or otherwise, Escrow Agent is directed to disburse to Seller any remaining balance of the Holdback Amount. The parties shall execute any additional escrow instructions not inconsistent with the foregoing reasonably required by Escrow Agent or either party relating to the Holdback Amount. Escrow Agent’s fees and costs for holding and disbursing the Holdback Amount shall be shared equally by Seller and Purchaser.

Holdback Amount. Escrow Agent shall hold back in escrow from Seller’s 's net proceeds at Closing an amount equal to Seventy-Five Thousand Dollars ($75,000.00) (the “"Holdback Amount”"). The sole purpose for which the Holdback Amount may be applied is as to any amounts which Seller owes to Purchaser for post-Closing claims to the extent allowed and subject to any limitations set forth in this Agreement. For clarity, the Holdback Amount is intended as a source of payment, but not as a limitation of damages that may be claimed by Purchaser. Except as to any amounts claimed to be owed by Seller to Purchaser which amounts are specifically reflected in a lawsuit commenced against Seller within twelve (12) months after the Closing for damages as provided in this Agreement based upon the post-Closing claim, Escrow Agent shall disburse the balance of the Holdback Amount to Seller immediately following nine (9) months after the expiration of the twelve (12) month periodClosing Date. Prior to institution of any such lawsuit, Purchaser shall provide at least ten (10) days prior written notice to Seller, specifying the exact amount and nature of any such claim asserted by Purchaser against the Holdback Amount. Any lawsuit commenced against Seller must specifically set forth the exact amount which is claimed to be owed by Seller to Purchaser, and absent such specific amount being identified, Escrow Agent is authorized to release the entire Holdback Amount to Seller immediately following nine (9) months after the expiration of the twelve month (12) month period post-ClosingClosing Date. Any portion of the Holdback Amount which Escrow Agent is entitled to retain pursuant to this Section 3.10 after nine (9) months after the passage of the twelve (12) month periodClosing Date, shall continue to be held in escrow pending final and unappealable dismissal or judgment in the action or actions timely commenced by Purchaser or settled pursuant to a written agreement between Seller and Purchaser. If Purchaser obtains a final and unappealable judgment in any such action, Escrow Agent is directed to make a disbursement to Purchaser from the Holdback Amount retained in escrow in the amount of the judgment plus any interest, attorney’s 's fees, and costs to which it is entitled thereon upon presentation to Escrow Agent and Seller of the court order or other evidence of such final and unappealable judgment. Once all such actions are either finally or unappealably dismissed or a final and unappealable judgment is entered therein or settled pursuant to a written agreement between Seller and Purchaser, and any amount of damages due to Purchaser is paid, whether from the Holdback Amount or otherwise, Escrow Agent is directed to disburse to Seller any remaining balance of the Holdback Amount. The parties shall execute any additional escrow instructions not inconsistent with the foregoing reasonably required by Escrow Agent or either party relating to the Holdback Amount. Escrow Agent’s 's fees and costs for holding and disbursing the Holdback Amount shall be shared equally by Seller and Purchaser.

Holdback Amount. Escrow Agent The parties hereto expressly acknowledge and agree that any and all payments required to be made by the Series A Holders with respect to their indemnification obligations pursuant to Section 2.2 shall hold back in escrow from Seller’s net proceeds at Closing be automatically reduced by an amount equal to Seventy-Five Thousand Dollars the aggregate amount of all Holdback Charges ($75,000.00) as defined in the Company’s 2015 Incentive Bonus Plan, adopted by the Company Board on March 20, 2015 (the “Holdback Amount2015 Incentive Bonus Plan”). The sole purpose , and calculated in accordance with any award agreement thereunder (the “2015 Incentive Bonus Plan Award Agreements”)) for which all current or former Participants (as defined in the Holdback Amount may be applied is as to any amounts which Seller owes to Purchaser for post-Closing claims 2015 Incentive Bonus Plan) with respect to the extent allowed applicable claim for Losses (the “Aggregate Holdback Charge”) and subject the Surviving Corporation shall promptly pay to any limitations set forth in this Agreement. For claritythe applicable Parent Indemnified Party such Aggregate Holdback Charge (or retain such amount, if the Holdback Amount Surviving Corporation is intended as a source of paymentitself the Parent Indemnified Party); provided, but not as a limitation of damages however, that may be claimed by Purchaser. Except as to any amounts claimed to be owed by Seller to Purchaser which amounts are specifically reflected in a lawsuit commenced against Seller within twelve (12) months after if the Closing for damages based upon the post-Closing claim, Escrow Agent shall disburse the balance of the Holdback Amount to Seller immediately following the expiration of the twelve (12) month period. Prior to institution of any such lawsuit, Purchaser shall provide at least ten (10) days prior written notice to Seller, specifying the exact amount and nature of any such claim asserted by Purchaser against the Holdback Amount. Any lawsuit commenced against Seller must specifically set forth the exact amount which is claimed to be owed by Seller to Purchaser, and absent such specific amount being identified, Escrow Agent is authorized to release the entire Holdback Amount to Seller immediately following the expiration of the twelve month (12) month period post-Closing. Any portion of the Holdback Amount which Escrow Agent is entitled to retain pursuant to this Section 3.10 after the passage of the twelve (12) month period, shall continue to be held in escrow pending final and unappealable dismissal or judgment in the action or actions timely commenced by Purchaser or settled pursuant to a written agreement between Seller and Purchaser. If Purchaser obtains a final and unappealable judgment in any such action, Escrow Agent is directed to make a disbursement to Purchaser from the Holdback Amount retained in escrow in the aggregate amount of the judgment plus remaining Holdback Amounts (as defined in (and calculated in accordance with) the 2015 Incentive Bonus Plan, as modified in any interest, attorney’s fees, and costs to which it 2015 Incentive Bonus Plan Award Agreement) for all current or former Participants (the “Aggregate Holdback Remaining Amount”) is entitled thereon upon presentation to Escrow Agent and Seller less than that percentage of the court order or other evidence of such final and unappealable judgment. Once all such actions are either finally or unappealably dismissed or a final and unappealable judgment is entered therein or settled Losses for any applicable claim pursuant to Section 2.2 equal to the sum of all then-applicable Applicable Percentages (as defined in the 2015 Incentive Bonus Plan) under all of the 2015 Incentive Bonus Plan Award Agreements, the payment required to be made by the Series A Holders with respect to such applicable claim pursuant to Section 2.2 shall instead be reduced by the Aggregate Holdback Remaining Amount and the Surviving Corporation shall promptly pay to the applicable Parent Indemnified Party the Aggregate Holdback Remaining Amount (or retain such amount, if the Surviving Corporation is itself the Parent Indemnified Party); provided, further, in no event shall a written agreement between Seller and Purchaser, and any amount of damages due to Purchaser is paid, whether from the current or former Participant’s Holdback Amount or otherwisebe reduced below zero (0). Upon the reduction of any payment required to be made by the Series A Holders with respect to their indemnification obligations pursuant to Section 2.2 by the Aggregate Holdback Remaining Amount, Escrow Agent is directed pursuant to disburse to Seller any remaining balance the second preceding proviso, then the indemnification obligations of the Holdback Amount. The parties Series A Holders pursuant to Section 2.2 shall execute no longer in any additional escrow instructions not inconsistent way be reduced in accordance with the foregoing reasonably required by Escrow Agent or either party relating to the Holdback Amount. Escrow Agent’s fees and costs for holding and disbursing the Holdback Amount shall be shared equally by Seller and Purchaserthis Section 2.9.

Holdback Amount. Escrow Agent Holder shall hold back in escrow from Seller’s 's net proceeds at Closing an amount equal to Seventy-Five Thousand Dollars ($75,000.00) (the “Holdback Amount”). The sole purpose for which the Holdback Amount may be applied is as to any amounts which Seller owes to Purchaser Buyer for post-Closing claims to the extent allowed and subject to any limitations set forth in this Agreement. For clarity, the Holdback Amount is intended as a source of payment, but not as a limitation of damages that may be claimed by PurchaserBuyer. Except as to any amounts claimed to be owed by Seller to Purchaser Buyer which amounts are specifically reflected in a lawsuit commenced against Seller within twelve nine (129) months after the of Closing for damages based upon the post-Closing claim, Escrow Agent Holder shall disburse the balance of the Holdback Amount to Seller immediately following the expiration of the twelve such nine (129) month period. Prior to institution period without need for consent or approval of any such lawsuit, Purchaser shall provide at least ten (10) days prior written notice to either Buyer or Seller, specifying the exact amount and nature of any such claim asserted by Purchaser against the Holdback Amount. Any lawsuit commenced against Seller must specifically set forth the exact amount which is claimed to be owed by Seller to Purchaser, Buyer and absent such specific amount being identified, Escrow Agent is authorized to release the entire Holdback Amount to Seller immediately following the expiration of the twelve month nine (129) month period post-Closing. Any portion of the Holdback Amount which Escrow Agent is entitled to retain pursuant to this Section 3.10 8.6 after the passage of the twelve nine (129) month period, shall continue to be held in escrow pending final and unappealable dismissal or judgment in the action or actions timely commenced by Purchaser Buyer or settled pursuant to a written agreement between Seller and PurchaserBuyer. If Purchaser Buyer obtains a final and unappealable judgment in any such action, Escrow Agent Holder is directed to make a disbursement to Purchaser Buyer from the Holdback Amount retained in escrow in the amount of the judgment plus any interest, attorney’s fees, and costs to which it is entitled thereon upon presentation to Escrow Agent Holder and Seller of the court order or other evidence of such final and unappealable judgment. Once all such actions are either finally or unappealably dismissed or a final and unappealable judgment is entered therein or settled pursuant to a written agreement between Seller and PurchaserBuyer, and any amount of damages due to Purchaser Buyer is paid, whether from the Holdback Amount or otherwise, Escrow Agent Holder is directed to disburse to Seller any remaining balance of the Holdback Amount. The parties shall execute any additional escrow instructions not inconsistent with the foregoing reasonably required by Escrow Agent Holder or either party relating to the Holdback Amount. Escrow AgentHolder’s fees and costs for holding and disbursing the Holdback Amount shall be shared equally by Seller and PurchaserBuyer.

Holdback Amount. Escrow Agent As security for any amounts payable by the Seller to the Purchaser pursuant to the terms of this Agreement, and as security for any failure of the Seller to perform its obligations under the Amended API Supply Agreement, including specifically, among other things, payment and on‑time delivery, the Purchaser shall hold back in escrow from Seller’s net proceeds at Closing retain out of the Cash Consideration payable pursuant to Clause 3.1 an amount equal to Seventy-Five Thousand Dollars ($75,000.00) *** (the “Holdback Amount”). The sole purpose for which the Holdback Amount may be applied is as In addition to any amounts which Seller owes to Purchaser for post-Closing claims to the extent allowed its other rights and subject to any limitations set forth in remedies under this Agreement. For clarityAgreement and applicable Law, the Holdback Amount is intended as Purchaser shall have a source full right of payment, but not as a limitation of damages that set-off and may be claimed by Purchaser. Except as to apply all or any amounts claimed to be owed by Seller to Purchaser which amounts are specifically reflected in a lawsuit commenced against Seller within twelve (12) months after the Closing for damages based upon the post-Closing claim, Escrow Agent shall disburse the balance part of the Holdback Amount to pay, or to provide for the payment of, (i) any amount required to be paid by the Seller immediately following to the expiration Purchaser under the terms of this Agreement or (ii) any damages arising from any failure of the twelve 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 applicable to amounts that are determined in good faith by the Purchaser to be 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, subject to the limitations set forth therein. Subject to the provisions of this Agreement, the Purchaser shall pay the unapplied Holdback Amount (12without any interest) to the Seller on the 18 (eighteen) month periodanniversary of the Closing Date. Prior If any Claim Notice has been delivered by the Purchaser to institution the Seller and the Parties have not reached an agreement with respect to the Purchaser’s entitlement to receive the Losses at issue in such Claim Notice, then the Purchaser’s obligation to pay any installment of any such lawsuit, Purchaser the unapplied Holdback Amount shall provide at least ten (10) days prior written notice be suspended with respect to Seller, specifying Purchaser’s good faith estimate of the exact amount and nature of any such claim asserted by Purchaser against the Holdback Amount. Any lawsuit commenced against Seller must specifically set forth the exact amount which is claimed to be owed by the Seller under the Claim Notice until a final determination as to the Purchaser’s entitlement to 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 Purchaser, and absent such specific amount being identified, Escrow Agent is authorized to release perform its obligations under the entire Holdback Amount to Seller immediately following Amended API Supply Agreement. Nothing in this Clause 7.4 shall be construed as limiting the expiration Liability of the twelve month (12) month period post-Closing. Any portion of the Holdback Amount which Escrow Agent is entitled Seller under this Agreement to retain pursuant to this Section 3.10 after the passage of the twelve (12) month period, shall continue to be held in escrow pending final and unappealable dismissal or judgment in the action or actions timely commenced by Purchaser or settled pursuant to a written agreement between Seller and Purchaser. If Purchaser obtains a final and unappealable judgment in any such action, Escrow Agent is directed to make a disbursement to Purchaser from the Holdback Amount retained in escrow in the amount of the judgment plus any interestHoldback Amount, attorney’s fees, and costs to which it is entitled thereon upon presentation to Escrow Agent and Seller of the court order or other evidence of such final and unappealable judgment. Once all such actions are either finally or unappealably dismissed or a final and unappealable judgment is entered therein or settled pursuant to a written agreement between Seller and Purchaser, and any amount of damages due to Purchaser is paid, whether from nor shall the Holdback Amount be considered as liquidated damages for any breach under this Agreement or otherwise, Escrow Agent is directed to disburse to Seller any remaining balance of the Holdback AmountAmended API Supply Agreement. The parties shall execute any additional escrow instructions not inconsistent with the foregoing reasonably required by Escrow Agent or either party relating to the Holdback Amount. Escrow Agent’s fees and costs for holding and disbursing the Holdback Amount shall be shared equally by Seller and Purchaser.8 POST COMPLETION COVENANTS 8.1 Tax Matters

Holdback Amount. Escrow Agent On the Closing Date, the Purchaser shall hold back withhold or be paid by Seller in escrow from Seller’s net proceeds at Closing an amount equal to Seventy-Five Thousand Dollars accordance with Section 3.3: ($75,000.00a) (the “Holdback Amount”). The sole purpose for which the Purchase Price Holdback Amount may for disbursement in accordance with the terms of this Agreement and which will be applied is as held for purposes of adjustment between the Estimated Purchase Price and the Final Purchase Price, and (b) the Indemnification Holdback Amount which will be held for purposes of making indemnification payments pursuant to any amounts which Article X. Purchaser and Seller owes to Purchaser for post-Closing claims to the extent allowed and subject to any limitations set forth in this Agreement. For clarity, agree that the Holdback Amount is intended as a source part of payment, but not as a limitation of damages that may be claimed by Purchaser. Except as the consideration paid to any amounts claimed Seller and the obligation to be owed by Seller to Purchaser which amounts are specifically reflected in a lawsuit commenced against Seller within twelve (12) months after the Closing for damages based upon the post-Closing claim, Escrow Agent shall disburse the balance of pay the Holdback Amount to Seller immediately following is absolute and unconditional, subject only to the expiration terms and conditions of the twelve (12) month period. Prior to institution of any such lawsuit, Purchaser shall provide at least ten (10) days prior written notice to Seller, specifying the exact amount and nature of any such claim asserted by Purchaser against the Holdback Amount. Any lawsuit commenced against Seller must specifically set forth the exact amount which is claimed to be owed by Seller to Purchaser, and absent such specific amount being identified, Escrow Agent is authorized to release the entire Holdback Amount to Seller immediately following the expiration of the twelve month (12) month period post-Closing. Any portion of the Holdback Amount which Escrow Agent is entitled to retain pursuant to this Section 3.10 after the passage of the twelve (12) month period, shall continue to be held in escrow pending final and unappealable dismissal or judgment in the action or actions timely commenced by Purchaser or settled pursuant to a written agreement between Seller and Purchaser. If Purchaser obtains a final and unappealable judgment in any such action, Escrow Agent is directed to make a disbursement to Purchaser from the Holdback Amount retained in escrow in the amount of the judgment plus any interest, attorney’s fees, and costs to which it is entitled thereon upon presentation to Escrow Agent and Seller of the court order or other evidence of such final and unappealable judgment. Once all such actions are either finally or unappealably dismissed or a final and unappealable judgment is entered therein or settled pursuant to a written agreement between Seller and Purchaser, and any amount of damages due to Purchaser is paid, whether from the Holdback Amount or otherwise, Escrow Agent is directed to disburse to Seller any remaining balance of the Holdback AmountAgreement. The parties shall execute any additional escrow instructions not inconsistent with the foregoing reasonably required by Escrow Agent or either party relating to the Holdback Amount. Escrow Agent’s fees and costs for holding and disbursing the remaining Indemnification Holdback Amount shall be shared equally released to Seller within five Business Days following the third anniversary of the Closing by wire transfer of immediately available funds to such account or accounts of Seller as Seller specifies in writing to Purchaser in the manner specified herein for the delivery of notices; provided, that if Purchaser has submitted a notice for indemnification on or prior to the third anniversary of the Closing and Purchasersuch indemnification claim is not finally determined until after the third anniversary of the Closing, then the Indemnification Holdback Amount shall remain subject to indemnification claim and any remaining portion of the Indemnification Holdback Amount shall not be released to Seller until after such indemnification claim shall have been finally determined and any indemnification payments to Purchaser have been made.

Holdback Amount. Escrow Agent As security for any amounts payable by the Seller to the Purchaser pursuant to the terms of this Agreement, and as security for any failure of the Seller to perform its obligations under the Amended API Supply Agreement, including specifically, among other things, payment and on-time delivery, the Purchaser shall hold back in escrow from Seller’s net proceeds at Closing retain out of the Cash Consideration payable pursuant to Clause 3.1 an amount equal to Seventy-Five Thousand Dollars ($75,000.00) *** (the “Holdback Amount”). The sole purpose for which the Holdback Amount may be applied is as In addition to any amounts which Seller owes to Purchaser for post-Closing claims to the extent allowed its other rights and subject to any limitations set forth in remedies under this Agreement. For clarityAgreement and applicable Law, the Holdback Amount is intended as Purchaser shall have a source full right of payment, but not as a limitation of damages that set-off and may be claimed by Purchaser. Except as to apply all or any amounts claimed to be owed by Seller to Purchaser which amounts are specifically reflected in a lawsuit commenced against Seller within twelve (12) months after the Closing for damages based upon the post-Closing claim, Escrow Agent shall disburse the balance part of the Holdback Amount to pay, or to provide for the payment of, (i) any amount required to be paid by the Seller immediately following to the expiration Purchaser under the terms of this Agreement or (ii) any damages arising from any failure of the twelve 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 applicable to amounts that are determined in good faith by the Purchaser to be 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, subject to the limitations set forth therein. Subject to the provisions of this Agreement, the Purchaser shall pay the unapplied Holdback Amount (12without any interest) to the Seller on the 18 (eighteen) month periodanniversary of the Closing Date. Prior If any Claim Notice has been delivered by the Purchaser to institution the Seller and the Parties have not reached an agreement with respect to the Purchaser’s entitlement to receive the Losses at issue in such Claim Notice, then the Purchaser’s obligation to pay any installment of any such lawsuit, Purchaser the unapplied Holdback Amount shall provide at least ten (10) days prior written notice be suspended with respect to Seller, specifying Purchaser’s good faith estimate of the exact amount and nature of any such claim asserted by Purchaser against the Holdback Amount. Any lawsuit commenced against Seller must specifically set forth the exact amount which is claimed to be owed by the Seller under the Claim Notice until a final determination as to the Purchaser’s entitlement to 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 Purchaser, and absent such specific amount being identified, Escrow Agent is authorized to release perform its obligations under the entire Holdback Amount to Seller immediately following Amended API Supply Agreement. Nothing in this Clause 7.4 shall be construed as limiting the expiration Liability of the twelve month (12) month period post-Closing. Any portion of the Holdback Amount which Escrow Agent is entitled Seller under this Agreement to retain pursuant to this Section 3.10 after the passage of the twelve (12) month period, shall continue to be held in escrow pending final and unappealable dismissal or judgment in the action or actions timely commenced by Purchaser or settled pursuant to a written agreement between Seller and Purchaser. If Purchaser obtains a final and unappealable judgment in any such action, Escrow Agent is directed to make a disbursement to Purchaser from the Holdback Amount retained in escrow in the amount of the judgment plus any interestHoldback Amount, attorney’s fees, and costs to which it is entitled thereon upon presentation to Escrow Agent and Seller of the court order or other evidence of such final and unappealable judgment. Once all such actions are either finally or unappealably dismissed or a final and unappealable judgment is entered therein or settled pursuant to a written agreement between Seller and Purchaser, and any amount of damages due to Purchaser is paid, whether from nor shall the Holdback Amount be considered as liquidated damages for any breach under this Agreement or otherwise, Escrow Agent is directed to disburse to Seller any remaining balance of the Holdback Amount. The parties shall execute any additional escrow instructions not inconsistent with the foregoing reasonably required by Escrow Agent or either party relating to the Holdback Amount. Escrow Agent’s fees and costs for holding and disbursing the Holdback Amount shall be shared equally by Seller and PurchaserAmended API Supply Agreement.