Escrow Fund. Notwithstanding the provisions of Article I, upon the Closing of the Merger, the Buyer shall issue to each Company Stockholder 90% of the Buyer Common Stock otherwise issuable to such stockholder pursuant to Article I (rounded upward to the nearest whole share). The remaining 10% of the Buyer Common Stock issuable to a Company Stockholder in connection with the Merger shall be referred to as "Escrow Shares," collectively, the Escrow Shares shall be referred to as the "Escrow Fund." The obligation of the Buyer to issue the Escrow Shares otherwise issuable upon the Merger or any such exercise shall be subject to reduction to satisfy the Company's obligations under this Article VII. Damages that: (i) are accepted as valid by the Stockholders' Agents (as defined below); or (ii) are determined to be valid by arbitration as described in this Article VII, shall reduce the number of Escrow Shares issuable to the Company Stockholders by the number of Escrow Shares (rounded to the closest whole number) equal to such Damages divided by the Buyer Share Market Value. As soon as practicable after the Effective Date, the Escrow Shares shall be registered in the name of, and be deposited with, Mercantile Bank (or other institution selected by the Buyer with the reasonable consent of the Company) as escrow agent (the "Escrow Agent"), such deposit to constitute the Escrow Fund and to be governed by the terms set forth herein and in the Escrow Agreement attached hereto as Exhibit D. The Escrow Shares shall be beneficially owned by the Company Stockholders and the Escrow Fund shall be available to partially compensate the Buyer pursuant to the indemnification obligations of the Former Company Stockholders. With respect to the claims made prior to the termination of the "Escrow Period" (as defined below), arising out of breaches of the representations and warranties set forth in Section 2.12 and, with respect only to Intellectual Property and Third Party Intellectual Property Rights, in Section 2.14 (collectively, the "Intellectual Property Claims"), the Buyer, in addition to the Escrow Fund, may seek indemnification from the Former Company Stockholders pursuant to the Affiliate Agreements and Stockholder Agreements. To the extent not used for the foregoing purposes, such Escrow Shares shall be released as provided in this Article VII.
Escrow Fund. At any time that Tenant is obligated under the Lease to pay the Tax and Insurance Reserve Fund Payment, Borrower shall pay or cause Tenant to pay same. Additionally, if at any time under the Lease, Borrower is obligated to return to Tenant any amounts in the Escrow Fund, Lender shall release such amounts from the Escrow Fund to Tenant in accordance with the terms of the Lease. In addition, during any period that Borrower is required to maintain Policies pursuant to Section 4.01 hereof, Borrower will also pay monthly to Lender, for deposit into the Escrow Fund, one-twelfth of an amount which would be sufficient to pay the Insurance Premiums due on such Policies. The Escrow Fund, if any, and the payments of interest or principal or both, payable pursuant to the Note, will be added together and must be paid as an aggregate sum by Borrower to Lender. Borrower pledges to Lender any and all monies now or hereafter deposited in the Escrow Fund as additional security to pay the Debt subject to Tenant’s right to such monies, if any, as set forth in subparagraph 13(e) of the Lease. Lender will apply the Escrow Fund to pay Taxes and Insurance Premiums required to be paid pursuant to Sections 4.01 and 4.02 hereof. If the amount of the Escrow Fund exceeds the amounts due for Taxes and Insurance Premiums pursuant to Sections 4.01 and 4.02 hereof, Lender will either return any excess to Borrower or credit such excess against future payments to be made to the Escrow Fund. In allocating such excess, Lender may deal with the Person shown on the records of Lender to be the owner of the Mortgaged Property. If the Escrow Fund is not sufficient, in Lender’s judgment, to pay when due the Taxes and Insurance Premiums, Borrower must promptly pay, or must cause Tenant to pay promptly, to Lender, upon demand, an amount which Lender shall estimate as sufficient to make up the deficiency. Subject to Tenant’s rights set forth in subparagraph 13(e) of the Lease, if an Event of Default exists, Lender may apply any sums then on deposit in the Escrow Fund to pay the following items in any order in its sole discretion:
(i) Taxes and Impositions and Insurance Premiums;
(ii) Interest on the unpaid principal balance of the Note;
(iii) Amortization of the unpaid principal balance of the Note; or
(iv) All other sums payable pursuant to the Loan Documents, including,’ Protective Advances made by Lender. Until expended or applied as above provided, any amounts in the Escrow Fund will constitute ad...
Escrow Fund. Concurrently herewith, Parent, the Stockholder Representative and the Escrow Agent shall have executed and delivered an escrow agreement in form satisfactory to both Parent and Company (the "Escrow Agreement") under which Computershare Trust Company of Canada or another Person mutually satisfactory to Parent and the Company shall act as escrow agent (the "Escrow Agent") with respect to an escrow fund (the "Escrow Fund") for the purposes of securing the payment of the indemnification obligations of the Company Stockholders pursuant to Article VI. Parent shall deposit into such Escrow Fund promptly following the Closing the Aggregate Escrow Amount. The Merger Consideration payable to the Company Stockholders at the Closing but for this Section 2.3(d) shall be reduced by an amount equal to each Stockholder's Pro Rata Portion as set forth opposite each Stockholder's name on Schedule 2.3(d) hereto. Upon the termination of the Escrow Fund in accordance with the Escrow Agreement, each Company Stockholder shall receive such Stockholder's Pro Rata Portion previously withheld from the Merger Consideration otherwise payable to such Company Stockholder less a pro rata amount of any indemnification obligations, if any, pursuant to Article VI, paid from the Escrow Fund. The adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, by the stockholders of Company shall constitute approval of the Escrow Agreement and all arrangements related thereto, including the depositing of the Aggregate Escrow Amount into the Escrow Fund.
Escrow Fund. At the Effective Time, the Company Stockholders will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time) without any act of any Company Stockholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any Company Stockholder, will be deposited with U.S. Bank Trust, National Association (or other institution acceptable to Parent and the Securityholder Agent (as defined in Section 7.2(g) below)), as Escrow Agent (the “Escrow Agent”), such deposit to constitute an escrow fund (the “Escrow Fund”) to be governed by the terms set forth herein and at Parent’s cost and expense. The Escrow Fund shall be available to compensate Parent and its affiliates for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys’ fees and expenses, and expenses of investigation and defense (hereinafter individually a “Loss” and collectively “Losses”) incurred, sustained or paid by Parent, its officers, directors, or affiliates (including the Surviving Corporation) directly or indirectly as a result of (i) any inaccuracy or breach of a representation or warranty of the Company (as modified by the Company Schedules) contained in this Agreement or any certificate, instrument or other document delivered pursuant to the terms of this Agreement, or any failure by the Company to perform or comply with any covenant contained herein, (ii) the payment by Parent or the Surviving Corporation of any amount on the account of Dissenting Shares which such payment or payments exceed the aggregate consideration that otherwise would have been payable in respect of such shares, (iii) the amount of any Third Party Obligations that the Company fails to satisfy pursuant to Section 5.6 above prior to the Effective Time and/or the amount of any cash in excess of the amounts set forth in Section 5.6 expended for such purpose, (iv) the payment of any Legal Expenses, or (v) the amount that the Final Cash Balance (as defined in Section 7.3 below) is less than the lesser of (A) the applicable Minimum Cash Balance required in Section 5.27 and (B) the Cash Amount reflected on the Estimated Closing Date Balance Sheet. Nothing herein shall limit the liability of the Company for any breach of any representation, warranty or covenant if the M...
Escrow Fund. “Escrow Fund” shall mean the escrow fund established pursuant to the Escrow Agreement.
Escrow Fund. 16 5.2 Indemnification..............................................................................16 5.3
Escrow Fund. 11 Section 3.6
Escrow Fund. At the Effective Time, the Company's stockholders will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time) without any act of any stockholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any stockholder, will be deposited with an institution acceptable to Parent and the Securityholder Agent as Escrow Agent (the "ESCROW AGENT"), such deposit to constitute an escrow fund (the "ESCROW FUND") to be governed by the terms set forth herein and at Parent's cost and expense. The portion of the Escrow Amount contributed on behalf of each stockholder of the Company shall be in proportion to the aggregate Parent Common Stock which such holder would otherwise be entitled under Sections 1.6(a), (b) and (c). No portion of the Escrow Amount shall be contributed in respect of any Company Options or warrants. The Escrow Fund shall be available to compensate Parent and its affiliates for any claims, losses, liabilities, damages, reasonable costs and expenses, including reasonable attorneys' fees and expenses, and reasonable expenses of investigation and defense incurred by Parent, its officers, directors, or affiliates (including the Surviving Corporation) directly or indirectly as a result of any inaccuracy or breach of a representation or warranty of the Company contained in Article II herein (as modified by the Company Schedules), or any failure by the Company to perform or comply with any covenant contained in Sections 4.1(a) to 4.1(w) or the first clause of Section 4.1(x) herein (hereinafter individually a "LOSS" and collectively "LOSSES"); provided, however, that the Escrow Fund shall only be available to compensate Parent, its officers, directors or affiliates to extent that the aggregate amount of Losses is in excess of $150,000, in which event the full amount of the Escrow Fund shall be available to so compensate Parent for any Losses. Parent and the Company each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the aggregate Merger consideration. The Escrow Fund shall be the sole source of damages to Parent arising from any claim hereunder (other than for damages due to fraud or willful misrepresenta...
Escrow Fund. In addition to the initial deposits with respect to Taxes and Insurance Premiums made by Borrower to Lender on the date hereof to be held by Lender in escrow, Borrower shall pay to Lender on the first day of each calendar month (a) one-twelfth of an amount which would be sufficient to pay the Taxes payable, or estimated by Lender to be payable, during the next ensuing twelve (12) months and (b) one-twelfth of an amount which would be sufficient to pay the Insurance Premiums due for the renewal of the coverage afforded by the Policies upon the expiration thereof (the amounts in (a) and (b) above shall be called the "Escrow Fund"
Escrow Fund. Prior to or simultaneously with the Closing, the Stockholders’ Representative and Parent shall enter into an escrow agreement (the “Escrow Agreement”) with an escrow agent selected by Parent and reasonably acceptable to the Stockholders’ Representative (the “Escrow Agent”), substantially in the form of Exhibit B hereto. Pursuant to the terms of the Escrow Agreement, Parent shall deposit one or more certificates in the name of the Escrow Agent representing the Escrow Shares into an escrow account, which account is to be managed by the Escrow Agent (the “Escrow Account”). Any Escrow Shares in the Escrow Account are referred to herein as the “Escrow Fund”. In connection with such deposit of the Escrow Shares with the Escrow Agent and as of the Effective Time, each holder of Company Stock will be deemed to have received and deposited with the Escrow Agent each stockholder’s pro rata interest in the Escrow Fund as determined as of Closing by reference to such stockholder’s ownership of shares of Company Stock (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting the Escrow Fund), without any act of the stockholders of the Company (the “Company Stockholders”). Distributions of any Escrow Shares from the Escrow Account shall be governed by the terms and conditions of the Escrow Agreement. The adoption of this Agreement and the approval of the Merger by the Company Stockholders shall constitute approval of the Escrow Agreement and of all the arrangements relating thereto, including, without limitation, the placement of the Escrow Shares in escrow and the appointment of the Stockholders’ Representative. No portion of the Escrow Fund shall be contributed in respect of any Company Option or any warrant or other security exercisable or convertible into Company Stock. No Parent Shares contributed to the Escrow Fund shall be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Surviving Corporation.
