Common use of Escrow Period; Distribution upon Termination of Escrow Periods Clause in Contracts

Escrow Period; Distribution upon Termination of Escrow Periods. Subject to the following requirements and the Escrow Agreement, the Available Escrow Fund shall be in existence immediately following the Effective Time and shall terminate at 5:00 p.m., local time on the fifth (5th) business day after the Survival Date (the "Escrow Period"); provided, however, that the Escrow Period shall not terminate with respect to any amount which, in the reasonable judgment of Parent, is necessary to satisfy any unsatisfied claims, if any, specified in any Officer's Certificate delivered to the Stockholder Representative and the Escrow Agent prior to the termination of the Escrow Period with respect to facts and circumstances existing on or prior to the Survival Date. Parent shall give the Escrow Agent notice of any amounts of still pending claims, or any unsatisfied claims in any Officer's Certificate. Following the termination of the Escrow Period, each of the Indemnifying Parties shall be entitled to receive such person's Pro Rata Portion (if any) of the remaining portion of the Available Escrow Fund, if any, not required to satisfy such claims and each of the Indemnifying Parties shall be entitled to receive such person's Pro Rata Portion (if any) of the remaining portion of the Available Escrow Fund, if any, following resolution of all such claims, if any, by Parent. For the purposes hereof, "Officer's Certificate" shall mean a certificate signed by any officer of Parent: (1) stating that an Indemnified Party has paid, sustained, incurred, or accrued, or reasonably anticipates that it will have to pay, sustain, incur, or accrue Losses, and (2) specifying in reasonable detail the individual items of Losses included in the amount so stated, the date each such item was paid, sustained, incurred, 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 Periods. Subject to the following requirements and the Escrow Agreementrequirements, the Available Escrow Fund shall be in existence immediately following the Effective Time and shall terminate at 5:00 p.m., local time California time, on the fifth (5th) business day after the Survival Expiration Date (the "Escrow PeriodESCROW PERIOD"); provided, however, that the Escrow Period shall not terminate with respect to any such amount which(or some portion thereof), that together with the aggregate amount remaining in the Escrow Fund is necessary in the reasonable judgment of Parent, is necessary subject to the objection of the Securityholder Agent and the subsequent arbitration of the matter in the manner provided in Section 8.2(g) hereof, to satisfy any unsatisfied claims, if any, claims concerning facts and circumstances existing prior to the termination of such Escrow Period specified in any Officer's Certificate delivered to the Stockholder Representative and the Escrow Agent prior to the termination of such Escrow Period. As soon as all such claims have been resolved, as evidenced by written memorandum of the Escrow Period with respect to facts Securityholder Agent and circumstances existing on or prior to the Survival Date. Parent shall give Parent, the Escrow Agent notice of any amounts of still pending claims, or any unsatisfied claims in any Officer's Certificate. Following shall deliver to the termination shareholders of the Escrow Period, each of the Indemnifying Parties shall be entitled to receive such person's Pro Rata Portion (if any) of Company the remaining portion of the Available Escrow Fund, if any, Fund not required to satisfy such claims and each claims; provided, however, the Escrow Agent shall release to the shareholders of the Indemnifying Parties shall be entitled to receive Company on the Expiration Date such person's Pro Rata Portion (if any) of the remaining portion of the Available Escrow Fund, if any, following resolution Fund that is in excess of all such claims, if any, by Parent. For the purposes hereof, "Officer's Certificate" shall mean a certificate signed by any officer of Parent: (1) stating that an Indemnified Party has paid, sustained, incurred, or accrued, or reasonably anticipates that it will have to pay, sustain, incur, or accrue Losses, and (2) specifying in reasonable detail the individual items of Losses included in the amount so statedin dispute of any unsatisfied claims. Deliveries of Escrow Amounts to the shareholders of the Company pursuant to this Section 8.2(b) shall be made in proportion to their respective original contributions to the Escrow Fund (as set forth on the Escrow Schedule). At all times during the Escrow Period, the date each such item was paid, sustained, incurred, or accrued, or Company shareholders shall be deemed to be the basis for such anticipated liability, and the nature record holders of their respective amounts of the misrepresentation, breach Parent Common Stock and Parent Preferred Stock comprising the Escrow Amount. Securityholder Agent (as defined below) shall provide to the Escrow Agent a current schedule of warranty or covenant Company shareholders' names and addresses and pro rata share of the Escrow Amount prior to which such item is relatedthe date of distribution of the Escrow Amount.

Escrow Period; Distribution upon Termination of Escrow Periods. Subject to -------------------------------------------------------------- the following requirements and the Escrow Agreementrequirements, the Available Escrow Fund shall be in existence immediately following the Effective Time Closing Date and shall terminate at the earlier of (a) the closing of the first sale by the Company of shares of Company Common Stock in a firm commitment underwritten offering pursuant to a registration statement under the Securities Act or (b) 5:00 p.m., local time Pacific Time, on the fifth (5th) business day after one year anniversary of the Survival Closing Date (the "Escrow ------ Period"); provided, however, that the Escrow Period shall not terminate ------ with respect to any amount which, in the reasonable good faith judgment of Parent, subject to the objection of the Shareholder Representative and the subsequent arbitration of the matter in the manner provided in Section ------- 7.3(f) hereof, is necessary to satisfy any then pending and unsatisfied claims, if any, ------ claims specified in any Officer's Certificate delivered to the Stockholder Representative and the Escrow Agent prior to the termination of the Escrow Period with respect to facts and circumstances existing on or prior to the Survival Datetermination of such Escrow Period. Parent shall give Promptly after the Escrow Agent notice of any amounts of still pending claims, or any unsatisfied claims in any Officer's Certificate. Following the termination expiration of the Escrow Period, each of Parent and the Indemnifying Parties Shareholder Representative shall be entitled jointly notify the Escrow Agent in writing that the Escrow Period has expired, and the Escrow Agent shall deliver to receive such person's Pro Rata Portion (if any) of the remaining Series B Shareholders the portion of the Available Escrow Fund, if any, not required to satisfy such claims and each (the "Remaining Portion"). Thereafter, ----------------- promptly after the resolution of any pending claim, the Indemnifying Parties Escrow Agent shall be entitled deliver to receive such person's Pro Rata Portion (if any) of the remaining Series B Shareholders the additional portion of the Available Escrow Fund, if any, following resolution of all such not required to satisfy any then remaining claims, if any, by Parent. For the purposes hereof, "Officer's Certificate" shall mean a certificate signed by any officer of Parent: (1) stating that an Indemnified Party has paid, sustained, incurred, or accrued, or reasonably anticipates that it will have to pay, sustain, incur, or accrue Losses, and (2) specifying in reasonable detail the individual items of Losses included in the amount so stated, the date each such item was paid, sustained, incurred, or accrued, or the basis for such anticipated liability, and the nature Deliveries of the misrepresentation, breach Escrow Amount out of warranty or covenant the Escrow Fund to which such item is related.the Series B Shareholders pursuant to this Section 7.3(b) shall be made in proportion to their -------------- respective Pro Rata Portions of the Escrow

Escrow Period; Distribution upon Termination of Escrow Periods. Subject to the following requirements and the Escrow Agreementrequirements, the Available Escrow Fund shall be in existence immediately following the Effective Time Closing and shall terminate at 5:00 p.m., local Pacific time on the fifth date that is ten (5th10) business day after days following the Survival End Date (the "“Escrow Period"”); provided, however, that the Escrow Period shall not terminate with respect to any amount whichwhich Buyer informs the Escrow Agent in writing is necessary, in the good faith reasonable judgment of ParentBuyer, is necessary to satisfy any unsatisfied claims, if any, claims specified in any Officer's ’s Certificate delivered to the Stockholder Representative and the Escrow Agent prior to the termination of the Escrow Period with respect to facts (such claims, the “Unsatisfied Claims”) and circumstances existing on or prior to the Survival Date. Parent shall give the Escrow Agent notice shall retain possession of any amounts such amount in accordance with the terms of still pending claims, or any unsatisfied claims in any Officer's Certificatethe Escrow Agreement. Following Promptly following the termination of the Escrow Period, the Escrow Agent shall distribute any amounts then remaining in the Escrow Fund (less any amount required to satisfy any Unsatisfied Claims) to the Paying Agent for distribution to each Indemnifying Party as set forth in Section 2.4(b). Promptly following resolution of any Unsatisfied Claim, Buyer and the Sellers’ Representative shall instruct the Escrow Agent to distribute the remainder of the Indemnifying Parties shall be entitled to receive such person's Pro Rata Portion Escrow Fund (if any) as provided in the resolution of such Unsatisfied Claim. Following the Escrow Period, and subject to any amounts necessary, in the good faith reasonable judgment of Buyer, to satisfy any Unsatisfied Claim, any Holdback Shares not withheld by Parent pursuant to Section 9.5(c)(iii) shall be released to Founder pursuant to the terms of the remaining portion Restricted Stock Award Agreement described in Section 2.3(e)(ii), provided that the initial tranche of Parent Shares subject to the one-year vesting period has vested thereunder. No Holdback Shares shall be released from the forfeiture restrictions to the extent they did not vest in accordance with the terms of the Available Escrow Fund, if any, not required to satisfy such claims and each of the Indemnifying Parties shall be entitled to receive such person's Pro Rata Portion (if any) of the remaining portion of the Available Escrow Fund, if any, following resolution of all such claims, if any, by Parent. For the purposes hereof, "Officer's Certificate" shall mean a certificate signed by any officer of Parent: (1) stating that an Indemnified Party has paid, sustained, incurred, or accrued, or reasonably anticipates that it will have to pay, sustain, incur, or accrue Losses, and (2) specifying in reasonable detail the individual items of Losses included in the amount so stated, the date each such item was paid, sustained, incurred, 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 relatedRestricted Stock Agreement.

Escrow Period; Distribution upon Termination of Escrow Periods. Subject to the following requirements and the Escrow Agreementrequirements, the Available Escrow Fund shall be in existence immediately following the Effective Time and shall terminate at 5:00 p.m., local time at Parent’s headquarters, on the fifth (5th) business day after the Survival Date (the "“Escrow Period"”); provided, however, that the Escrow Period shall not terminate with respect to any amount which, in the reasonable judgment of Parent, is or may be necessary to satisfy any unsatisfied claims, if any, claims specified in any Officer's ’s Certificate delivered to the Escrow Agent and the Stockholder Representative and the Escrow Agent prior to the termination of the Escrow Period termination date with respect to facts and circumstances existing on or prior to the Survival DateDate (the “Escrow Holdback Amount”). The number of shares of Parent Common Stock that may be held back in respect of the Escrow Holdback Amount shall give be based on the Signing Price. As soon as all such claims have been resolved in accordance with Section 7.4(d), the Escrow Agent notice of any amounts of still pending claims, or any unsatisfied claims in any Officer's Certificate. Following shall deliver the termination portion of the Escrow Period, each of the Indemnifying Parties shall be entitled to receive such person's Pro Rata Portion (if any) of the remaining portion of the Available Escrow Fund, if any, Holdback Amount not required to satisfy such claims and each to the Stockholders. Deliveries of amounts out of the Indemnifying Parties Escrow Fund to the Stockholders pursuant to this Section 7.3(b) shall be entitled made in proportion to receive such person's their respective Escrow Pro Rata Portion (if any) Portions of the remaining Escrow Amount, with the number of shares delivered to each Stockholder rounded down to the nearest whole number of shares of Parent Common Stock. Any distribution of all or a portion of the Available Parent Common Stock to the Stockholders shall be made by delivery of the stock certificate held by the Escrow FundAgent representing the Parent Common Stock to the Parent, endorsed for transfer, with instruction to the Parent to transfer and issue, or cause its transfer agent to transfer and issue, the aggregate number of shares of Parent Common Stock being distributed, allocated among the Stockholders based upon his, her or its Escrow Pro Rata Portion, in each case by issuing to each such Stockholder a stock certificate representing such allocated shares, registered in his, her or its name set forth on the schedule delivered to the Escrow Agent at Closing and mailed by first class mail to such Stockholders’ address set forth on such schedule (or to such 75 other address as such Stockholder may have previously instructed the Escrow Agent in writing); and, if anyless than all the then remaining shares of Parent Common Stock are to be so distributed and transferred as a result of the retention in the Escrow Fund of an Escrow Holdback Amount in accordance with this Section 7.3(b), following resolution of all such claimsthe Escrow Agent shall instruct Parent to issue and return to the Escrow Agent (or its nominee, if anythe Escrow Agent shall so instruct) a stock certificate representing the shares of Parent Common Stock representing the Escrow Holdback Amount. Parent shall use reasonable best efforts to cause the distribution of the shares of Parent Common Stock constituting the Escrow Amount to which to the Stockholders are entitled to be effected promptly after the Escrow Period termination date, by Parentor, in the case an Escrow Holdback Amount is held back in accordance with this Section 7.3(b), promptly after the claims relating to such Escrow Holdback Amount have been resolved in accordance with Section 7.4(d). For The Escrow Agent shall have no liability for the purposes hereof, "Officer's Certificate" shall mean a certificate signed by any officer of Parent: (1) stating that an Indemnified Party has paid, sustained, incurredactions or omissions of, or accruedany delay on the part of, or reasonably anticipates that it will have to pay, sustain, incur, or accrue Losses, and (2) specifying Parent in reasonable detail connection with the individual items of Losses included in the amount so stated, the date each such item was paid, sustained, incurred, 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 relatedforegoing.

Escrow Period; Distribution upon Termination of Escrow Periods. Subject to the following requirements and the Escrow Agreementrequirements, the Available Escrow Fund shall be in existence immediately following the Effective Time and shall terminate at 5:00 p.m., local New York time on the fifth (5th) business day after following the Survival Date (the "Escrow PeriodESCROW PERIOD"); provided, however, that the Escrow Period shall not terminate with respect to any amount which, in the reasonable judgment of Parent, is or may be necessary to satisfy any unsatisfied claims, if any, claims specified in any Officer's Certificate delivered to the Escrow Agent and the Stockholder Representative and the Escrow Agent prior to the termination of the Escrow Period termination date with respect to facts and circumstances existing on or prior to the Survival Date. Parent shall give As soon as all such claims have been resolved in accordance with SECTION 7.5, the Escrow Agent notice of any amounts of still pending claims, or any unsatisfied claims in any Officer's Certificate. Following the termination of the Escrow Period, each of the Indemnifying Parties shall be entitled to receive such person's Pro Rata Portion (if any) cause transfer of the remaining portion of the Available Escrow Fund, if any, Fund not required to satisfy such claims and each to the Stockholders. Deliveries of amounts out of the Indemnifying Parties Escrow Fund to the Stockholders pursuant to this SECTION 7.4(b) shall be entitled made in proportion to receive such person's their respective Pro Rata Portion (if any) Portions of the remaining portion Escrow Fund. With Respect to Escrow payments that are payable to Stockholders designated as "Optionholders" on Exhibit E, the Escrow Agent shall remit to the Surviving Corporation the aggregate amount allocable to such Stockholders. As soon as practicable after the Surviving Corporation's receipt of any such remittance, Parent shall cause the Surviving Corporation to pay the respective amount to each such designated Stockholder, less any required federal, state, local and foreign Tax withholding amounts, which Parent shall cause to be paid to the applicable taxing authorities and which shall be treated for all other purposes under this Agreement as distributed in respect of the Available Escrow Fund, if any, following resolution respective shares of all such claims, if any, by Parent. For the purposes hereof, "Officer's Certificate" shall mean a certificate signed by any officer of Parent: (1) stating that an Indemnified Party has paid, sustained, incurred, or accrued, or reasonably anticipates that it will have to pay, sustain, incur, or accrue Losses, and (2) specifying in reasonable detail the individual items of Losses included in the amount so stated, the date each such item was paid, sustained, incurred, 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 relatedCompany Capital Stock.

Escrow Period; Distribution upon Termination of Escrow Periods. Subject to the following requirements and the Escrow Agreementrequirements, the Available Escrow Fund shall be in existence immediately following the Effective Time and shall terminate at 5:00 p.m., local time (California Time) on the fifth (5th) business day after the Survival Expiration Date (the "Escrow Period"); provided, however, provided that the Escrow Period shall not terminate with respect to any such amount which(or some portion thereof), that is necessary in the reasonable judgment of Parent, is necessary Parent (subject to reduction as may be determined by arbitration of the matter as provided in Section 7.2(f) hereof in the event of the objection of the Stockholder Representative (as defined in Section 7.2(h) hereof) in the manner provided in Section 7.2(e) hereof) to satisfy any unsatisfied claims, if any, claims concerning facts and circumstances existing prior to the termination of such Escrow Period and to the extent specified in any Officer's Certificate (as defined below) delivered to the Stockholder Representative and the Escrow Agent prior to the termination of the such Escrow Period with respect to facts and circumstances existing on or prior to the Survival DatePeriod. Parent shall give As soon as all such claims have been resolved, the Escrow Agent notice of any amounts of still pending claims, or any unsatisfied claims in any Officer's Certificate. Following shall transfer to the termination stockholders of the Escrow PeriodCompany, each of the Indemnifying Parties shall be entitled pursuant to receive such person's Pro Rata Portion (if any) of written instructions by Parent, the remaining portion of the Available Escrow Fund, if any, not required to satisfy such claims and each claims. Notwithstanding the foregoing, on the third business day following the date that is twelve months from the Closing Date, Parent shall instruct the Escrow Agent in writing to distribute 50% of the Indemnifying Parties Escrow Amount remaining (and not subject to any unsatisfied claims under any Officer's Certificate(s) delivered to the Escrow Agent prior to the date of the Early Release) in the Escrow Fund to the stockholders (the "Early Release"); provided, however, that there shall be entitled no Early Release if an Indemnified Party(ies) has previously submitted an Officer's Certificate(s) claiming an aggregate of $5,000,000 or more in Losses. Deliveries of Escrow Amounts to receive such personthe stockholders of the Company pursuant to this Section 7.2(b) shall be made with reference to each stockholder's Pro Rata Portion (if any) of the remaining portion of the Available Escrow Fund, if any, following resolution of all such claims, if any, by Parent. For the purposes hereof, "Officer's Certificate" shall mean a certificate signed by any officer of Parent: (1) stating that an Indemnified Party has paid, sustained, incurred, or accrued, or reasonably anticipates that it will have to pay, sustain, incur, or accrue Losses, and (2) specifying in reasonable detail the individual items of Losses included in the amount so stated, the date each such item was paid, sustained, incurred, 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 relatedBasis.