Common use of Offset Claims Clause in Contracts

Offset Claims. (a) In the event Indemnitees determine to offset against the Earnout Merger Consideration, if any, any amounts pursuant to Section 9.02, CytRx shall a deliver notice (each, an “Offset Notice”) to the Stockholder Representative setting forth in reasonable detail a description of such amounts, whether the basis for such offset is clause (i), (ii) or (iii) of Section 9.02(a) and, with respect to any Losses claimed under clause 9(ii) of Section 9.02(a), the nature of the inaccuracy in or breach of representation, warranty, covenant or agreement of the Company to which such Losses relate. Upon delivery of an Offset Notice, CytRx shall, subject to paragraph (b) below and to Section 9.04, be entitled and authorized to withhold from the Earnout Merger Consideration, if any, as and when the Earnout Merger Consideration would otherwise be payable hereunder, the amounts set forth in the Offset Notice. (b) Within 30 days after the delivery of an Offset Notice to the Stockholder Representative, the Stockholder Representative may notify (the “Response Notice”) CytRx either that the Stockholder Representative agrees to the offset against the Earnout Merger Consideration of amounts as set forth in the Offset Notice or disputes all, or any portion of, the amounts claimed in the Offset Notice. If no Response Notice has been delivered to CytRx before the expiration of such 30-day period, the Stockholder Representative shall be deemed to have agreed, on behalf of the Company Stockholders, that all of the amounts set forth in the Offset Notice may be offset pursuant to this Article IX, and CytRx may thereafter offset against the Earnout Merger Consideration, if any, and retain, as and when the Earnout Merger Consideration would otherwise be payable hereunder, such amounts. If the Response Notice is delivered to CytRx before the expiration of such thirty 30-day period and disputes a portion, but not all, of the claimed amounts, then the Stockholder Representative shall be deemed to have agreed, on behalf of the Company Stockholders, that such undisputed amounts may likewise be offset pursuant to this Article IX.