General Escrow Fund i. Provided that SELLER does not elect to fund the following escrow amounts with a General Letter of Credit as provided below, the Closing Agent shall hold in escrow (if Closing Agent is also the Escrow Agent) or deliver to Escrow Agent (if Escrow Agent is not the Closing Agent) the following amount at Closing (which shall be paid out of the Purchase Price): cash in an amount equal to TEN MILLION AND 00/100 DOLLARS ($10,000,000) (the “General Escrow Fund”), which General Escrow Fund, if cash, shall be paid by wire transfer of immediately available funds to an interest bearing account designated by an Escrow Agent. The General Escrow Fund shall not be used for any purposes other than those set forth in Section 10.b.ii.
General Escrow Fund i. Provided that SELLER does not elect to fund the following escrow amounts with a General Letter of Credit as provided below, the Closing Agent shall hold in escrow (if Closing Agent is also the Escrow Agent) or deliver to Escrow Agent (if Escrow Agent is not the Closing Agent) the following amount at Closing (which shall be paid out of the Purchase Price): cash in an amount equal to ONE MILLION FOUR HUNDRED SEVENTY ONE THOUSAND EIGHT HUNDRED NINETY EIGHT AND NO/100 DOLLARS ($1,471,898.00) (the “General Escrow Fund”), which General Escrow Fund, if cash, shall be paid by wire transfer of immediately available funds to an interest bearing account designated by an Escrow Agent. The General Escrow Fund shall not be used for any purposes other than those set forth in Section 10.b.
General Escrow Fund. At the effective time of Merger I, a portion (valued at an aggregate of $15,000,000 at the closing of Merger I) of the shares of Borland common stock and cash to be received by TogetherSoft stockholders in the Mergers will be deposited in escrow (the “General Escrow Fund”) with the Escrow Agent to serve as security for the indemnification obligations of TogetherSoft under Section 10.2(a) of the Merger Agreement. TogetherSoft stockholders that receive Merger Consideration are required to indemnify, severally (and not jointly) in proportion to their original contribution to the General Escrow Fund, Borland and certain affiliated persons (the “Indemnitees”) against: • any inaccuracy in or breach of any representation or warranty set forth in the Merger Agreement (without giving effect to any Material Adverse Effect or other materiality qualification contained or incorporated in such representation or warranty or to any update to the disclosure schedule delivered by TogetherSoft to Borland prior to the closing); • any breach of any covenant or obligation of TogetherSoft to Borland or either Merger Sub; • certain liabilities arising out of license agreements to which TogetherSoft or its subsidiaries are a party that provide for less than $50,000 annual payments on a per customer basis; • certain liabilities arising out of the failure of TogetherSoft’s software to perform in accordance with product specifications; • certain liabilities arising out of any “virus” or other code designed or intended to disrupt, damage or destroy TogetherSoft’s software; • certain liabilities arising out of TogetherSoft’s Russian or Czech operations; • certain liabilities associated with the loss of tax deduction due to the application of Section 280G of the Code; and • any legal proceeding relating to any inaccuracy or breach of the type referred to above (including any legal proceeding commenced by the Indemnitees for the purpose of enforcing any of its rights under Section 10 of the Merger Agreement). The portion of the General Escrow Fund that is not the subject of an unresolved claim for damages will be released to the Indemnitors within five business days after the date that is 18 months after the closing date of Xxxxxx X (the “General Escrow Termination Date”). In the event that there is an unresolved claim for damages (or a contested portion of such claim) on the General Escrow Termination Date, shares of Borland common stock and cash with a value equal to 110% of the unreso...
General Escrow Fund. To provide a fund against which an Indemnitee may assert claims of indemnification pursuant to Section 10.2(a) (an “Indemnification Claim”), at Closing Parent shall deposit ten percent (10%) of the Aggregate Stock Consideration (the “Escrow Shares”) and ten percent (10%) of the Aggregate Estimated Cash Consideration (together, the “General Escrow Amount”) with Citibank, N.A., as escrow agent (the “Escrow Agent”), such deposit to constitute the “General Escrow Fund” and to be governed by the terms set forth herein and in the Escrow Agreement. The General Escrow Amount and interest and other earnings payable on the cash portion thereon, shall be held and distributed in accordance with the Escrow Agreement. Each Escrowed Stockholder’s proportionate interest in the General Escrow Fund shall be based on such stockholder’s proportionate interest in the Aggregate Estimated Merger Consideration payable to holders of Company Capital Stock that it is entitled to receive pursuant to Article III. The Escrow Shares shall be registered in the name of the Escrow Agent for so long as they constitute part of the General Escrow Fund. For tax purposes, the parties agree to treat all payments made under this Article X as adjustments to the Aggregate Final Merger Consideration.
General Escrow Fund. Any payment of indemnification required to be made pursuant to Section 7.2 will be made exclusively out of the General Escrow Fund (as hereinafter defined) then held by the Escrow Agent. The "General Escrow Fund" shall mean the General Escrow Amount, as such sum may be decreased as provided in the Escrow Agreement and in this Article 7.
General Escrow Fund. On the 18-month anniversary of the Closing Date (the "General Release Date"), the Purchaser and the Shareholders' Representative shall direct the Escrow Agent to release to each of the Shareholders their Pro Rata Portion of the remaining amount of the General Escrow Fund; provided however, that $500,000 shall remain in the General Escrow Fund and shall not be released to the Shareholders until the 30-month anniversary of the Closing Date in accordance with Section 7.6(b) below (the "Tax Escrow Fund"); provided, further, however, that the remaining amount in the General Escrow Fund on the General Release Date shall not be distributed to the extent of the aggregate amount of all Losses specified in any then unresolved good faith indemnification claims made by any Purchaser Indemnified Party pursuant to Section 7.2 prior to the General Release Date. The Shareholders and the applicable Purchaser Indemnified Party shall negotiate in good faith to determine the amount of such unresolved claims and in the event the parties cannot reach an agreement on the amount of such claim within sixty days following the General Release Date, the amount shall be determined by arbitration in accordance with the provisions of Section 7(b) of the Escrow Agreement. To the extent that on the General Release Date any amount has been reserved and withheld from distribution from the General Escrow Fund on such date on account of an unresolved claim for indemnification and, subsequent to the General Release Date, such claim is resolved, the parties shall immediately direct the Escrow Agent to (i) release to the applicable Purchaser Indemnified Party the amount of Loss, if any, due in respect of such claim as finally determined, and (ii) release to each Shareholder an amount equal to such Shareholders Pro Rata Portion of the excess, if any, remaining in the General Escrow Fund after the payments, if any, pursuant to the foregoing clause (i).
General Escrow Fund. As security for the indemnity provided for in this Section 9.2 and by virtue of this Agreement, the Stockholders, holders of Preferred Stock (the "Preferred Stockholders") and holders of NTC Options vested as of the Closing Date, as set forth on Exhibit A, will be deemed to have received and deposited with the Escrow Agent (as defined below) the General 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 with respect to the General Escrow Amount) without any act of any Stockholder, Preferred Stockholder and holders of NTC Options vested as of the Closing Date, as set forth on Exhibit A. As soon as practicable after the Effective Time, the General Escrow Amount, without any act of any Stockholder, or holder of Preferred Stock, will be deposited with an institution mutually acceptable to Parent and NTC in their reasonable discretion as Escrow Agent which shall execute a joinder hereto (the "Escrow Agent"), such deposit to constitute an escrow fund ------------- (the "General Escrow Fund") to be governed by the terms set forth --------------------- herein. The Escrow Agent may execute this Agreement following the date hereof, and prior to the Effective Time, and such later execution, if so executed after the date hereof, shall not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the General Escrow Amount contributed on behalf of each Stockholder, Preferred Stockholder and holders of NTC Options vested as of the Closing Date, as set forth on Exhibit A, shall be in proportion to the aggregate Parent Common Stock which such person would otherwise be entitled under Section 1.8 or the Preferred Stock Agreement. The General Escrow Amount shall be used to indemnify and hold Parent and its officers, directors and affiliates (including the Surviving Corporation) (the "Indemnified Parties") harmless against all ------------------- Damages incurred by any Indemnified Parties directly or indirectly as a result of (i) any inaccuracy or breach of a representation or warranty of NTC contained in this Agreement or any Ancillary Agreement or NTC's failure to perform or comply prior to the Effective Time with any covenant contained in this Agreement, (ii) any legal, accounting, financial advisor, investment banker or other third-party professional fees, costs, commissions or expenses incurred by NTC in...
General Escrow Fund. If, on the General Fund Termination ------------------- Date, there is any amount of the General Escrow Fund remaining undisbursed and not subject to an Indemnification Notice received by the Escrow Agent, the Escrow Agent shall disburse (a) (upon receipt of proper stock certificates from Buyer's transfer agent) Escrowed Shares to the Xxxxxxx Stockholders in accordance with each Xxxxxxx Stockholder's Proportionate Interest (rounded to the nearest whole share) and (b) the General Escrow Fund, if any, to the Xxxxxxx Stockholders in accordance with each Xxxxxxx Stockholder's Proportionate Interest (rounded to the nearest whole cent).
General Escrow Fund. “General Escrow Fund” shall mean the escrow fund maintained by the escrow agent for the purposes of satisfying claims brought pursuant to Section 10.2(a) of the Agreement for the period of time and in accordance with the terms set forth in the Agreement and the Escrow Agreement.
General Escrow Fund. If, on the General Fund Termination ------------------- Date, there is any amount of the General Escrow Fund remaining undisbursed and not subject to an Indemnification Notice received by the Escrow Agent, the Escrow Agent shall disburse (a) to the Xxxxxxx Shareholders in accordance with each Xxxxxxx Stockholder's Proportionate Interest (rounded to the nearest whole share) (upon receipt of proper stock certificates from Buyer's transfer agent) Escrowed Shares, (b) to the Xxxxxxx Shareholders in accordance with each Xxxxxxx Stockholder's Proportionate Interest (rounded to the nearest whole cent) an amount equal to (1) the excess of $1,700,000 over the aggregate amount of all cash distributions and other cash amounts paid from the General Escrow Fund (including, without limitation, all cash General Escrow Payouts), plus (2) interest on all amounts in the General Escrow Fund to the extent actually earned up to the Federal short-term rate (as defined in Section 1274(d) of the Code) for the period beginning on the date hereof and ending on the General Fund Termination Date and (c) to Buyer, an amount equal to the interest on all amounts in the General Escrow Fund to the extent such interest exceeds the amount of interest calculated pursuant to subclause
