Holdback Arrangement Sample Clauses

Open Split View

Download

Share

Cite

Holdback Arrangement 

Sample 1Sample 2

Save

Copy

Related to Holdback Arrangement

• Escrow Arrangement The Company and the Purchaser shall enter into an escrow arrangement with Xxxxxxx Xxxxxx & Green, P.C. (the "Escrow Agent") in the Form of EXHIBIT B hereto respecting payment against delivery of the Shares.

• Escrow Arrangements The Parties shall take all action required to cause the Escrow Agent to hold all funds deposited with or held by the Escrow Agent pursuant to the Escrow Agreement, including the Escrow Deposit and any interest or earnings accrued thereon (the "Escrow Funds"), until such time as they are to be released to the parties in accordance with this Section 3.4. The fees and expenses of the Escrow Agent shall be borne equally by the Sellers on the one hand and Buyer on the other hand. The Parties shall promptly execute and deliver such instructions and other documents and take all other action as may be required to cause the Escrow Agent to release the Escrow Funds to the Parties as follows: (a) Except as set forth in Section 3.4(d), within one Business Day after the earlier of (i) the date upon which a binding settlement or compromise of the Subject Litigation has been reached, which settlement or compromise provides for an unconditional release of the Company or any successor in interest identified by Buyer to Sellers (whether by merger, consolidation or otherwise) from any liability or obligation arising with respect to the Subject Litigation or (ii) the date upon which a final judgment of a court of competent jurisdiction has been entered to the effect that the Company or any such successor in interest is not subject to liability in respect of the Subject Litigation, the Escrow Agent shall release to the Sellers (to such account or accounts as shall be designated by the Seller Representative) an amount equal to $7,000,000, plus one half of all interest or earnings included in the Escrow Funds (or, if less, the total amount of remaining Escrow Funds not previously released in accordance with this Section 3.4) (the "Litigation Escrow Amount"); (b) Within one Business Day after the date upon which (A) Buyer, the Company or any such successor in interest to the Company pays or becomes unconditionally obligated to pay (whether as a result of any final judgment or arbitral award or as a result of any settlement to which the Sellers have granted their consent in accordance with Section 12.3) any Losses for which it is entitled to receive indemnification from Sellers under Section 12.1 arising from a Third Party Claim, including in respect of the Subject Litigation, or (B) Sellers become unconditionally obligated to pay to Buyer (whether by agreement of the Parties or as a result of an arbitral award entered in favor of Buyer) any Losses for which Buyer is entitled to receive indemnification from Sellers under Section 12.1 arising from a Claim other than a Third Party Claim, the Escrow Agent shall release to the Buyer (to such account or accounts as shall be designated by the Buyer) an amount equal to such Losses; and (c) Except as set forth in Section 3.4(d), immediately upon the second anniversary of the Closing Date, the Escrow Agent shall release to the Sellers (to such account or accounts as shall be designated by the Seller Representative) all remaining Escrow Funds, other than the Litigation Escrow Amount (which may only be released in accordance with the terms of Section 3.4(a) above). (d) Notwithstanding Sections 3.4(a) and (c) above, the parties shall not be required to take action to cause the Escrow Agent to release Escrowed Funds to the Sellers in accordance with such provisions if Buyer shall have asserted good faith claims for indemnity under Section 12.1 which have not been finally resolved (the "Pending Claims"), to the extent that, after the release of such funds by the Escrow Agent as contemplated by Sections 3.4(a) or (c), the remaining Escrowed Funds held by the Escrow Agent would be insufficient to pay the amount necessary to cover Sellers' indemnification obligations in respect of such Pending Claims. (e) If, in order to secure the release of any Escrowed Funds in accordance with this Section 3.4, it is necessary for Buyer on the one hand or Sellers on the other hand to commence arbitration proceedings in accordance with Section 14.9, the arbitrator may, if it determines that the other party or parties (the "Nonconsenting Party") failed or refused to take action to release all or part of the Escrowed Funds to the other party (the "Other Party") as required by this Agreement and did not have a good faith basis for such failure or refusal, order the Nonconsenting Party to pay to the Other Party an amount equal to the interest that would have accrued on the portion of the Escrowed Funds that would have been released but for the failure or refusal on the part of the Nonconsenting Party, at a rate at 10% per annum, for each day from and after the commencement of such failure or refusal until the date upon which applicable portion of the Escrowed Funds was actually released to the Other Party.

• Holdback Agreement (a) Each Holder agrees not to effect any sale, transfer, or other actual or pecuniary transfer (including heading and similar arrangements) of any Registrable Securities or of any other equity securities of the Company, or any securities convertible into or exchangeable or exercisable for such stock or securities, during the period beginning seven (7) days prior to, and ending ninety (90) days after (or for such shorter period as to which the managing underwriter(s) may agree), the date of the underwriting agreement of each Underwritten Offering made pursuant to a Registration Statement other than Registrable Securities sold pursuant to such Underwritten Offering, provided that (i) notwithstanding the foregoing, the duration of the foregoing restrictions shall be no longer than the duration of the shortest restriction generally imposed by the underwriters on any of the Company, the officers, directors or any other affiliate of the Company or any other stockholder of the Company on whom a restriction is imposed or with whom the Company has granted registration rights for any of its equity securities; and (ii) the Holders shall not be subject to the foregoing restrictions if and to the extent that the managing underwriter(s) agree to waive the restriction set forth in such underwriting agreement for any of the Persons set forth in the immediately preceding clause (i); provided further, that none of the restrictions in this Section 6(a) shall apply to a Holder if such Holder has provided an Opt-Out Notice to the Company in accordance with Section 2(c)(ii) prior to receiving notice of such Underwritten Offering and has not revoked such Opt-Out Notice; and (b) the Company agrees not to effect any public sale or distribution of its equity securities (or any securities convertible into or exchangeable or exercisable for such securities) during the seven (7) days prior to and during the ninety (90)-day period beginning on the effective date of any underwritten Demand Registration (or for such shorter period as to which the managing underwriter or underwriters may agree), except as part of such Demand Registration or in connection with any employee benefit or similar plan, any dividend reinvestment plan, or a business acquisition or combination and to use all reasonable efforts to cause each holder of at least five percent (5%) (on a fully diluted basis) of its equity securities (or any securities convertible into or exchangeable or exercisable for such securities) which are or may be purchased from the Company at any time after the date of this Agreement (other than in a registered offering) to agree not to effect any sale or distribution of any such securities during such period (except as part of such Underwritten Offering, if otherwise permitted). Each Holder agrees to enter into any agreements reasonably requested by any managing underwriter reflecting the terms of this Section 6.

• Arrangement Agreement This Plan of Arrangement is made pursuant to, and is subject to the provisions of, the Arrangement Agreement, except in respect of the sequence of the steps comprising the Arrangement, which shall occur in the order set forth herein.

• Shared Loss Arrangement (a) Loss Mitigation and Consideration of Alternatives. (i) For each Single Family Shared-Loss Loan in default or for which a default is reasonably foreseeable, the Assuming Institution shall undertake reasonable and customary loss mitigation efforts, in accordance with any of the following programs selected by Assuming Institution in its sole discretion, Exhibit 5 (FDIC Mortgage Loan Modification Program), the United States Treasury's Home Affordable Modification Program Guidelines or any other modification program approved by the United States Treasury Department, the Corporation, the Board of Governors of the Federal Reserve System or any other governmental agency (it being understood that the Assuming Institution can select different programs for the various Single Family Shared-Loss Loans) (such program chosen, the “Modification Guidelines”). After selecting the applicable Modification Guideline for each such Single Family Shared-Loss Loan, the Assuming Institution shall document its consideration of foreclosure, loan restructuring under the applicable Modification Guideline chosen, and short-sale (if short-sale is a viable option) alternatives and shall select the alternative the Assuming Institution believes, based on its estimated calculations, will result in the least Loss. If unemployment or underemployment is the primary cause for default or for which a default is reasonably foreseeable, the Assuming Institution may consider the borrower for a temporary forbearance plan which reduces the loan payment to an affordable level for at least six (6) months. (ii) Losses on Home Equity Loans shall be shared under the charge-off policies of the Assuming Institution’s Examination Criteria as if they were Single Family Shared-Loss Loans. (iii) Losses on Investor-Owned Residential Loans shall be treated as Restructured Loans, and with the consent of the Receiver can be restructured under terms separate from the Exhibit 5 standards. Please refer to Exhibits 2(a)(1)-(2) for guidance in Calculation of Loss for Restructured Loans. Losses on Investor-Owned Residential Loans will be treated as if they were Single Family Shared-Loss Loans. (iv) The Assuming Institution shall retain its loss calculations for the Shared Loss Loans and such calculations shall be provided to the Receiver upon request. For the avoidance of doubt and notwithstanding anything herein to the contrary, (x) the Assuming Institution is not required to modify or restructure any Shared-Loss Loan on more than one occasion and (y) the Assuming Institution is not required to consider any alternatives with respect to any Shared-Loss Loan in the process of foreclosure as of the Bank Closing if the Assuming Institution can document that a loan modification is not cost effective and shall be entitled to continue such foreclosure measures and recover the Foreclosure Loss as provided herein, and (z) the Assuming Institution shall have a transition period of up to 90 days after Bank Closing to implement the Modification Guidelines, during which time, the Assuming Institution may submit claims under such guidelines as may be in place at the Failed Bank.

• Holdback Agreements (a) To the extent not inconsistent with applicable law, no holder of Registrable Securities shall effect any public sale or distribution (including sales pursuant to Rule 144 of the Securities Act) of equity securities of the Company, or any securities, options, or rights convertible into or exchangeable or exercisable for such securities, during the seven days prior to and the 180-day period beginning on the effective date of any initial public offering or any underwritten Demand Registration or any underwritten Piggyback Registration in which Registrable Securities are included (except as part of such underwritten registration or pursuant to registrations on Form S-4 or Form S-8 or any successor form), unless the underwriters managing the registered public offering otherwise agree. (b) The Company (i) shall not effect any public sale or distribution of its equity securities, or any securities, options, or rights convertible into or exchangeable or exercisable for such securities, during the seven days prior to and during the 180-day period beginning on the effective date of any underwritten Demand Registration or any underwritten Piggyback Registration (except as part of such underwritten registration or pursuant to registrations on Form S-8 or any successor form), unless the underwriters managing the registered public offering otherwise agree, and (ii) to the extent not inconsistent with applicable law, shall use its reasonable best efforts to cause each holder of its equity securities, or any securities convertible into or exchangeable or exercisable for equity securities, purchased from the Company at any time after the date of this Agreement (other than in a registered public offering) to agree not to effect any public sale or distribution (including sales pursuant to Rule 144 of the Securities Act) of any such securities during such period (except as part of such underwritten registration, if otherwise permitted), unless the underwriters managing the registered public offering otherwise agree.

• Holdback At the Closing, an amount equal to $7,000,000 (the “Holdback Amount”; and together with all earnings thereon, the “Holdback Funds”) shall be deposited by the Buyer, or on the Buyer’s behalf, in an account with the Escrow Agent as security for the obligations of the Seller under this Agreement. Subject to any payments owed in accordance with ‎Section 1.2 of this Agreement or claims made in accordance with Section ‎10 of this Agreement, (i) the Initial Holdback Funds Release Amount, if any, shall be released (by delivery of joint written instructions by Seller and Buyer to the Escrow Agent) to the Seller upon the final determinations pursuant to ‎Section 1.2(f) after any required payments in connection thereto have been made, (ii) the remaining undistributed balance of the Holdback Funds, not subject to any pending claims, shall be released (by delivery of joint written instructions by Seller and Buyer to Escrow Agent) by the Escrow Agent to the Seller on the second Business Day following the first (1st) anniversary of the Closing Date (the “Holdback Termination Date”) and (iii) any balance of the Holdback Funds subject to pending claims on the Holdback Termination Date shall be released (by delivery of joint written instructions by Seller and Buyer to Escrow Agent) upon final resolution of such pending claims. The Holdback Funds shall be the sole remedy of the Buyer and the exclusive source for payment by the Seller of any post-Closing adjustment to the Estimated Closing Date Consideration pursuant to Section 1.2(f) and in respect of Seller’s indemnification obligations set forth in Section 10.1 of this Agreement other than (i) with respect to breaches of the Fundamental Representations, (ii) breaches of the covenants set forth in Sections 5.6(c), 5.6(h) (solely with respect to non-cash distributions), 5.6(t), 5.6(x) and 5.12 or (iii) in the event of fraud. Prior to Closing, the Seller may elect, upon written notice to the Buyer, to be treated as the owner of the Holdback Amount for federal and state Tax purposes. If the Seller does not make such election, Buyer shall be so treated.

• Tax Arrangements 47.1 Where the Contractor is liable to be taxed in the UK in respect of consideration received under this contract, it shall at all times comply with the Income Tax (Earnings and Xxxxxxxx) Xxx 0000 (ITEPA) and all other statutes and regulations relating to income tax in respect of that consideration. 47.2 Where the Contractor is liable to National Insurance Contributions (NICs) in respect of consideration received under this Framework Agreement, it shall at all times comply with the Social Security Contributions and Benefits Xxx 0000 (SSCBA) and all other statutes and regulations relating to NICs in respect of that consideration. 47.3 The Authority may, at any time during the term of this Framework Agreement, request the Contractor to provide information which demonstrates how the Contractor complies with sub-clauses 47.1 and 47.2 above or why those clauses do not apply to it. 47.4 A request under sub-clause 47.3 above may specify the information which the Contractor must provide and the period within which that information must be provided.

• Special Arrangements No Taxation Authority is operating any special arrangement (being an arrangement which is not based on relevant legislation or any published practice) in relation to the affairs of any Group Company.

• Management Arrangements 9.1. The Management Arrangements set out the arrangements for the strategic management of the relationship between the Authority and the Contractor, including arrangements for monitoring of the Contractor’s compliance with the Statement of Requirements, the Service Levels, the Award Procedures and the terms of this Framework Agreement. 9.2. The Authority may by notice to the Contractor suspend the Contractor’s appointment to provide Services to Framework Public Bodies for a notified period of time: 9.2.1. if the Authority becomes entitled to terminate this Framework Agreement under clause 42 (Termination Rights) or 43 (Termination on Insolvency or Change of Control); or 9.2.2. in any other circumstance provided for in the Management Arrangements. 9.3. Suspension under clause 9.2 shall terminate upon cessation of all of any circumstances referred to in subclauses 9.2.1 and 9.2.2. 9.4. The Contractor must continue to perform existing Call-off Contracts during any period of suspension under clause 9.2.