Common use of Right to Setoff Clause in Contracts

Right to Setoff. Upon notice to the Sellers, Buyer shall have a claim and right of setoff as to any amount to which any Indemnified Party is entitled under this Article V against amounts otherwise payable to Sellers under any provision of this Agreement, including its payment of any portion of the Earn-Out. The exercise of such right of setoff by Buyer in good faith, whether or not ultimately determined to be justified, will not constitute a breach of Buyer’s obligation to pay the Earn-Out or any other amounts due under this Agreement. Neither the exercise of nor the failure to exercise such right of setoff will constitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedies that may be available to it, including Buyer’s right to recover the amount by which any amount due to Buyer exceeds the Earn-Out. To the extent that liability for or the amount of indemnifiable Losses in respect of an Action or Claim against a Seller has not yet been finally determined in accordance with this THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [***] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. Agreement, Buyer shall be entitled to withhold payment of any portion of the Earn-Out otherwise due and payable to such Seller (up to the amount of indemnifiable Losses that Buyer in good faith reasonably determines are likely to be incurred upon the advice of counsel) and place such amounts in escrow with an escrow agent mutually acceptable to the Parties until such liability or the amount of indemnifiable Losses has been finally determined.

Right to Setoff. Upon notice If a Buyer Indemnified Party incurs or suffers Losses for which Buyer (subject to the Sellerslimitations set forth elsewhere in this Article XII) is otherwise entitled to indemnification under Section 12.2, Buyer shall have a claim and may set off against Milestone Payments otherwise payable under Section 2.6(a)(iii) Buyer’s good faith estimate of the amount of such indemnifiable Losses (the “Setoff Amount”). If Buyer exercises its setoff right of setoff as to any amount to which any Indemnified Party is entitled under this Article V against amounts otherwise payable Section 12.10, Buyer will provide Seller Parent with a written certificate, signed by Buyer’s Chief Financial Officer, certifying that the amount set off by Buyer represents Buyer’s good faith estimate of such Losses. Notwithstanding the foregoing, if within fifteen (15) days following receipt of such certificate Seller Parent notifies Buyer in writing that it disputes Buyer’s assertion that Seller Parent is obligated to Sellers indemnify Buyer for such Losses under any provision Section 12.2 or the amount set off by Buyer, then pending the Parties’ agreement regarding the appropriate setoff (if any) or a determination by a court of this Agreement, including its payment of any portion competent jurisdiction of the Earnproper amount that Buyer may set off (if any) in accordance with Section 13.10, Buyer will pay the Setoff Amount into an interest-Outbearing escrow account established for the purpose at a mutually acceptable bank or trust company pending a decision of such court. The In the event that it is finally determined by such court that Buyer has set off an amount that exceeds the amount of Losses for which Seller Parent is obligated to indemnify Buyer under Section 12.2, then Buyer will cause the amount of such excess, plus interest earned on such amount in such escrow account, to be released from the escrow account and paid to Seller Parent. Subject to Buyer’s compliance with its obligations in this Section 12.10, the exercise of such right of setoff by Buyer in good faith, whether or not ultimately determined to be justified, will not constitute a breach an event of Buyer’s obligation to pay the Earn-Out or any other amounts due under this Agreementdefault hereunder. Neither the exercise of nor the failure to exercise such right of setoff will constitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedies that may be available to it, including Buyer’s right to recover the amount by which any amount due to Buyer exceeds the Earn-Out. To the extent that liability for or the amount of indemnifiable Losses in respect of an Action or Claim against a Seller has not yet been finally determined in accordance with this THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [***] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. Agreement, Buyer shall be entitled to withhold payment of any portion of the Earn-Out otherwise due and payable to such Seller (up to the amount of indemnifiable Losses that Buyer in good faith reasonably determines are likely to be incurred upon the advice of counsel) and place such amounts in escrow with an escrow agent mutually acceptable to the Parties until such liability or the amount of indemnifiable Losses has been finally determined.

Right to Setoff. Upon (a) Notwithstanding any provision hereof to the contrary, upon notice to the Sellers, Buyer shall have a claim and right of setoff as to any amount to which any Indemnified Party is entitled under this Article V against amounts otherwise payable to Sellers under any provision of this Agreement, including its payment of any portion of the Earn-Out. The exercise of such right of setoff by Buyer in good faith, whether or not ultimately determined to be justified, will not constitute a breach of Buyer’s obligation to pay the Earn-Out or any other amounts due under this Agreement. Neither the exercise of nor the failure to exercise such right of setoff will constitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedies that may be available to it, including Buyer’s right to recover the amount by which any amount due to Buyer exceeds the Earn-Out. To the extent that liability for or the amount of indemnifiable Losses in respect of an Action or Claim against a Seller has not yet been finally determined in accordance with this THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [***] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. AgreementSeller, Buyer shall be entitled to withhold payment set-off (i) any amounts due to Buyer from Seller hereunder, whether by reason of overpayment of the Purchase Price or, indemnification under Article 8, or otherwise, against (ii) amounts due from Buyer to the Seller (not any Key Leader or other third party) hereunder. Any set-off shall be applied against amounts payable to the Seller in the chronological order all amounts of every kind payable to the Seller are due until the set-off is complete. Upon the occurrence of any portion event or existence of the Earn-Out any condition which Buyer reasonably believes will result in a claim for indemnification under Article 8, Buyer may withhold from amounts otherwise due and payable hereunder an amount equal to such Seller (up to Buyer's reasonable estimate of the amount of indemnifiable Losses that such claim until such time as the actual amount of Buyer's indemnification claim, and right of set-off hereunder, is determined. (b) Notwithstanding any provision hereof to the contrary, upon notice to Buyer, Seller shall be entitled to set-off (i) any amounts due to Seller from Buyer hereunder, whether by reason of overpayment of the Purchase Price or, indemnification under Article 8, or otherwise, against (ii) amounts due from Seller to the Buyer (not any Key Leader or other third party) hereunder. Any set-off shall be applied against amounts payable to the Buyer in good faith reasonably determines are likely to be incurred upon the advice chronological order all amounts of counsel) and place such amounts in escrow with an escrow agent mutually acceptable every kind payable to the Parties Buyer are due until such liability the set-off is complete. Upon the occurrence of any event or existence of any condition which Seller reasonably believes will result in a claim for indemnification under Article 8, Seller may withhold from amounts otherwise due hereunder an amount equal to Seller's reasonable estimate of the amount of indemnifiable Losses has been finally such claim until such time as the actual amount of Seller's indemnification claim, and right of set-off hereunder, is determined. (c) Claims for indemnification for which Buyer or Seller, as the case may be, exercises its right of set-off hereunder shall be promptly submitted to binding arbitration in New York in accordance with the rules and regulations of the American Arbitration Association. The arbitrators will be selected by the American Arbitration Association. The determination of the arbitrator(s) will be conclusive and binding upon the parties, and any determination by the arbitrator(s) of any award may be filed with the clerk of a court of competent jurisdiction as a final adjudication of the claim involved, or application may be made to such court for judicial acceptance of the award and an order of enforcement. Each party will bear its own expenses with respect to such arbitration. Any amount withheld by Buyer or Seller, as the case may be, pursuant to the set-off right under this Section 8.6 that the arbitrator(s) determine was in excess of the amount that the other party was liable under the indemnification claim brought to such arbitration shall be returned forthwith to the other party. The arbitrator may award reasonable attorneys' fees and costs to the prevailing party.