Escrow Period; Distribution upon Termination of Escrow Period. Subject to the following requirements, the Escrow Fund shall be in existence immediately following the Effective Time and shall terminate on the eighteen-month anniversary of the Closing Date (such period being the “Escrow Period”); provided, however, that following the Closing Statement becoming final and binding on the parties in accordance with Section 2.10 and disbursement of funds in accordance with Section 8.3(e)(ii), if the Holdback Adjustment Amount was added to the Holdback Consideration, the Escrow Agent shall deliver to holders of Company Common Stock an amount equal to the Holdback Adjustment Amount minus any amounts paid to Parent from the Holdback Adjustment Amount (with it being understood, however, that in no event shall any distribution be made pursuant to this sentence to the extent that, at the time of such distribution or as a result of such distribution, the aggregate amount in the Escrow Fund is or would be less than the excess of (i) $20,000,000 (plus interest thereon from the Closing Date through and including the date of distribution) over (ii) the portion of the Holdback Consideration released from the Escrow Fund to Buyer Indemnified Persons prior to the date of distribution as a result of claims for indemnification pursuant to Sections 8.2(a)(i), 8.2(a)(ii) or 8.2(a)(iii)); provided, further, however, that the Escrow Period shall not terminate with respect to any amount of an unsatisfied claim specified in any Parent Officer’s Statement, Purchase Price Adjustment Statement or Purchase Price Adjustment Notice (each, as defined below) delivered to the Escrow Agent prior to termination of such Escrow Period. The Escrow Funds not subject to unsatisfied claims as contemplated by this Section 8.3 (the “Remaining Holdback Consideration”) shall be delivered to the holders of the Company Common Stock upon the termination of the Escrow Period. As soon after the date for release of any portion of the Holdback Consideration as any such claims have been resolved, the Escrow Agent shall deliver to holders of Company Common Stock the remaining portion, if any, of the Escrow Fund not required to satisfy any claims then pending as additional Holdback Consideration. Each holder of Company Common Stock shall be entitled to his, her or its Pro Rata Share of any distribution made to holders of Company Common Stock pursuant to this Section 8.3(b); provided that notwithstanding anything herein to the contrary, the Stockholder Representative, pursuant ...
Escrow Period; Distribution upon Termination of Escrow Period. Subject to the following requirements, the Escrow Fund shall be in existence immediately following the Closing Date and shall terminate at 5:00 p.m., California time on the Expiration Date (the “Escrow Period”); provided, however, that the Escrow Period shall not terminate with respect to any amount which, in reasonable judgment of Parent, subject to the objection of the Member Representative and the subsequent arbitration of the matter in the manner provided in Section 9.02(f) hereof, is necessary to satisfy any unsatisfied claims specified in any Officer’s Certificate (as defined in paragraph (d) below) that has been prepared and delivered in good faith to the Escrow Agent prior to termination of such Escrow Period with respect to facts and circumstances existing prior to the termination of such Escrow Period. On the Expiration Date, any amounts as to which the Escrow Period has expired shall be promptly paid out to the Members. As soon as all such claims have been resolved, the Escrow Agent shall deliver to the Members the remaining portion of the Escrow Fund not required to satisfy such claims including all interest or other income earned by the Escrow Agent on the Escrow Fund. Deliveries of Escrow Amounts to the Members pursuant to this Section 9.02(c) shall be paid to the Members in accordance with Section 2.03(a)(iii) and the payment instructions set forth on Schedule I attached hereto.
Escrow Period; Distribution upon Termination of Escrow Period. (i) Subject to the following requirements, the Indemnification Escrow Fund shall be in existence immediately following the Closing and shall terminate at 5:00 p.m., Pacific time, at the Expiration Time (the “Indemnification Escrow Period”); provided, however, that the Indemnification Escrow Period shall not terminate with respect to any amount which is reasonably necessary to satisfy any unsatisfied claims specified in any Officer’s Certificate delivered to the Escrow Agent and the Securityholder Representative prior to the Indemnification Escrow Period termination date with respect to facts and circumstances existing prior to the Expiration Time.
(ii) Within two (2) Business Days following the Expiration Time, the Escrow Agent shall deliver to each Indemnifying Party, with respect to the Indemnification Escrow Fund, such Indemnifying Party’s pro rata interest in the Escrow Cash then remaining in the Indemnification Escrow Fund that is not required to satisfy any then pending claims against the Indemnification Escrow Fund. Notwithstanding anything to the contrary in this Section 8.4(c) (i) the Escrow Agent shall not deliver any portion of the Escrow Funds to any Reliant Warrantholder in respect of the Assumed Warrants that have not been previously exercised for Thermage Common Stock, (ii) any portion of the Escrow Funds otherwise deliverable with respect thereto shall be delivered instead to Thermage and (iii) the cash so delivered to Thermage shall become issuable to the applicable holder of such Assumed Warrants only upon the exercise of such Assumed Warrants in accordance with the terms and conditions of such Assumed Warrants.
Escrow Period; Distribution upon Termination of Escrow Period. Subject to the following requirements, the Escrow Fund shall be in existence immediately following the Effective Time and shall terminate at 5:00 p.m., Eastern Time, on the Expiration Date (the “Escrow Period”); provided that the Escrow Period shall not terminate with respect to such amount (or some portion thereof) that is necessary, in the reasonable judgment of Parent and subject to the objection of the Securityholder Agent and the subsequent arbitration of the matter in the manner provided in Section 10.02(g) hereof, to satisfy any unsatisfied Losses concerning facts and circumstances existing prior to the termination of the Escrow Period specified in any Officer’s Certificate delivered to the Escrow Agent prior to termination of the Escrow Period. As soon as any such Loss has been resolved, the Escrow Agent shall deliver to the Securityholders the remaining portion of the Escrow Fund not required to satisfy any other such unresolved Loss. Deliveries of amounts from the Escrow Fund to the Securityholders pursuant to this Section 10.02(b) shall be made in their respective Pro Rata Share of the amount being distributed from the Escrow Fund, provided that Parent may elect, in its discretion, to pay all Option Holders directly.
Escrow Period; Distribution upon Termination of Escrow Period. Subject to the following requirements, the Escrow Fund shall be in existence as of the Closing and shall terminate at 11:59 p.m., local time, on the sixth (6th) month anniversary after the Closing Date with respect to Fifty (50%) percent of the Escrow Fund, and the balance of the Escrow Fund shall terminate at 11:59 P.M., local time twelve (12) months after the Closing Date (the “Escrow Period”); provided, however, that the Escrow Period shall not terminate with respect to 100% of the amount of any unsatisfied claims specified in any Officer’s Certificate delivered in good faith prior to the respective expiration date with respect to facts and circumstances existing prior to the Expiration Date (each, an “Unresolved Claim”). As soon as an Unresolved Claim has been resolved (whether by settlement, other agreement or Order), Stratus shall, within five (5) days, deliver to the Transfer Agent for distribution, to and in the names of those Persons designated by the Holder Representative, the portion of the Escrow Shares, if any, not required to satisfy other Unresolved Claims. For the purposes hereof, “Officer’s Certificate” shall mean a certificate signed by any executive officer of Stratus and delivered to the Holder Representative: (1) stating that Stratus has paid, incurred, sustained or accrued, or reasonably anticipates that it will have to pay, incur, sustain or accrue Losses and (2) specifying in as much detail as then exists the individual items of Losses included in the amount so stated, the date each such item was paid, incurred, sustained or accrued, or the basis for such anticipated liability, and the nature of the misrepresentation, breach of warranty or covenant to which such item is related.
Escrow Period; Distribution upon Termination of Escrow Period. The Escrow Fund shall be in existence immediately following the Closing Date and shall terminate at the end of twelve (12) months from the Closing date at 5:00 p.m., California Time (the “Escrow Period”); provided, however, that the Escrow Period shall not terminate with respect to any Escrow Shares necessary to satisfy any then pending and unsatisfied claims. Any such claims shall be specified in an Officer’s Certificate delivered to the Escrow Agent on or anytime prior to the expiration of the Escrow Period with respect to facts and circumstances existing prior to the expiration of such Escrow Period. Following the expiration of the Escrow Period and as soon as all such claims have been resolved, the Escrow Agent shall deliver to the Sellers, upon receipt by the Escrow Agent of written instructions from Representative regarding the distribution (including the number of Escrow Shares to be distributed to each Seller), the relevant portion of the Escrow Fund, if any, to be distributed and not required to satisfy such claims (the “Remaining Portion”). Delivery of the Escrow Shares to the Sellers pursuant to this Section 6 shall be made in proportion to their respective Pro Rata Percentages of the Escrow Fund.
Escrow Period; Distribution upon Termination of Escrow Period. Subject to the following requirements, the Escrow Fund shall be in existence immediately following the Closing and shall terminate on the twelve (12) month anniversary of the Closing Date (the “Escrow Period”); provided, however, that the Escrow Period shall not terminate with respect to any amount which is necessary to satisfy any unsatisfied claims specified in any Officer’s Certificate(s) delivered to Seller and the escrow agent prior to the end of the Escrow Period with respect to facts and circumstances existing prior to such time as specified further in the Escrow Agreement. As soon as all such claims have been resolved, the escrow agent shall deliver to Seller the remaining portion of the Escrow Fund, if any, not required to satisfy such claims.
Escrow Period; Distribution upon Termination of Escrow Period. Subject to the following requirements, the Escrow Fund shall be in existence immediately following the Effective Time. Fifty percent (50%) of the amount held in the Escrow Fund on the date that is the one (1) year anniversary of the Closing Date (less any amount which, in the reasonable judgment of Parent, is necessary to satisfy any unresolved claims specified in any Claim Certificate that is delivered to the Stockholders’ Representative prior to 5:00 p.m. Pacific on the one (1) year anniversary of the Closing Date with respect to facts and circumstances existing on or prior to 5:00 p.m. Pacific on the one (1) year anniversary of the Closing Date), shall be released from the Escrow Fund no later than 5:00 p.m. Pacific time on the fifth (5th) Business Day following the one (1) year anniversary of the Closing Date (the “First Escrow Release”). Any amounts remaining in the Escrow Fund on the date that is eighteen (18) months from the Closing Date shall be released from the Escrow Fund at 5:00 p.m., Pacific time as soon as commercially practicable and in no event later than the fifth (5th) Business Day after such date (less any amount which, in the reasonable judgment of Parent, is necessary to satisfy any unresolved claims specified in any Claim Certificate that is delivered to the Escrow Agent prior to 5:00 p.m. Pacific on the date that is eighteen (18) months from the Closing Date with respect to facts and circumstances existing on or prior to such date); provided, however, that the Escrow Fund with respect to the Working Capital Escrow Amount shall terminate in accordance with Section 6.5. Following the termination of the Escrow Fund with respect to the Indemnification Escrow Amount, the Escrow Agent shall deliver to each of the Indemnifying Parties such Indemnifying Party’s Pro Rata Portion (if any) of the remaining portion of the Escrow Fund not required to satisfy any then pending claims against the Escrow Fund and shall deliver to each of the Indemnifying Parties such Indemnifying Party’s Pro Rata Portion (if any) of the remaining portion of the Indemnification Escrow Amount, if any, following resolution of all such claims. In the event that it is determined that the Adjusted Working Capital Amount shall have been understated in the original calculation of the Merger Consideration for purposes of the payments made to the Indemnifying Parties at the Closing, or overstated in an amount that is less than the Working Capital Escrow Amount, the Escrow Agen...
Escrow Period; Distribution upon Termination of Escrow Period. Subject to the following requirements, the Escrow Fund shall be in existence as of the Closing and shall terminate at 5:00 p.m., Eastern time, on the Expiration Date (the "ESCROW PERIOD") and will be distributed to the Company Stockholders; provided, however, that the Escrow Period shall not terminate with respect to 100% of the amount of any unsatisfied claims specified in any Officer's Certificate delivered in good faith to the Escrow Agent prior to the Expiration Date with respect to facts and circumstances existing prior to the Expiration Date (each, an "UNRESOLVED CLAIM"). As soon as all such claims have been resolved, the Escrow Agent shall deliver to the Exchange Agent, on behalf of the applicable Company Stockholders, the remaining portion of the Escrow Amount, if any, not required to satisfy such Unresolved Claims. For the purposes hereof, "OFFICER'S CERTIFICATE" shall mean a certificate signed by any officer of Parent and delivered to the Escrow Agent and the Stockholder Representative: (1) stating that Parent has paid, incurred, sustained or accrued, or reasonably anticipates that it will have to pay, incur, sustain or accrue, Losses, (2) specifying in reasonable detail the individual items of Losses included in the amount so stated, the date each such item was paid, incurred, sustained or accrued, or the basis for such anticipated liability, and the nature of the misrepresentation, breach of warranty or covenant to which such item is related, and (3) identifying the amount of cash and/or the number of shares of Parent Common Stock to be delivered to Parent in compensation for such Losses. Notwithstanding any other provision of this Agreement, Parent Indemnifiable Losses do not include, and no Parent Indemnified Party may seek to recover indemnification or other relief for, consequential damages, lost profits or exemplary or punitive damages (unless such damages or loss profits are incurred by a Parent Indemnified Party as a result of a third party claim). The number of shares of Parent Common Stock to be delivered to Parent in compensation for any Losses pursuant to this Section 9.3(b) shall be equal to the quotient of (x) the amount of compensation to be delivered for the Losses certified in an Officer's Certificate minus the amount of cash to be delivered for such Losses, divided by (y) the then Average Parent Stock Price.
Escrow Period; Distribution upon Termination of Escrow Period. Subject to the following requirements, the Escrow Fund shall be in existence immediately following the Effective Time and shall terminate at 5:00 p.m. (San Francisco Time) on the Escrow Termination Date (the "Escrow Period"); provided, however, that the ------------- Escrow Period shall not terminate with respect to any portion of the Escrow Fund which, in the reasonable judgment of Parent, subject to the objection of the Shareholder Representative, is necessary to satisfy any then pending and unsatisfied claims specified in any Officer's Certificate timely delivered to the Escrow Agent prior to the termination of the Escrow Period with respect to facts and circumstances existing prior to the termination of such Escrow Period. As soon as all such claims have been resolved and all Third Party Expenses have been paid pursuant to Section 5.4 hereof, the Escrow Agent shall deliver to the Shareholders the remaining portion of the Escrow Fund, if any, not required to satisfy such claims and Third Party Expenses. Deliveries of Escrow Amounts to the Shareholders shall be made in proportion to their respective contributions to the Escrow Fund.
