Holdback Fund. (a) At the Effective Time, Parent shall withhold the Holdback Amount from the Merger Aggregate Consideration otherwise payable to each Company Holder pursuant to Section 1.2 and/or the Company Liquidity Bonus Plan in accordance with each such Company Holder’s Pro Rata Portion. The balance of the Holdback Fund shall accrue interest at the Applicable Rate from the Closing Date until the earlier to occur of (a) the release and payment of the Holdback Fund to the Company Holders pursuant to Section 8.6(b) and (b) the exhaustion of the Holdback Fund pursuant to claims for Indemnifiable Damages in accordance with this Article VIII. Subject to Section 8.1, Parent shall hold the Holdback Fund until 5:00 p.m. Pacific time on the Holdback Release Date.
(b) Promptly following (and in any event no later than five Business Days after) the Holdback Release Date, Parent shall distribute to each Company Holder or to the Exchange Agent for further distribution to each Company Holder, such Company Holder’s Pro Rata Portion of any balance of the Holdback Fund, less (i) any amounts that would be necessary in the reasonable judgment of Parent to satisfy any then pending and unsatisfied or unresolved claim for indemnification pursuant to this ARTICLE VIII delivered to the Holders’ Representative prior to the Holdback Release Date if such claim(s) were resolved in full in favor of the Indemnified Parties (which amounts will continue to be withheld until the related claims have been finally resolved) and (ii) any applicable withholding Tax relating to such amount. Promptly following the time that any such pending and unsatisfied or unresolved claims have been resolved, Parent shall deliver the remaining portion of such undistributed amount, if any, not used to satisfy such claims, and less any applicable withholding Taxes, to the Company Holders (based on their Pro Rata Portion).
(c) Parent shall not be required to set aside or otherwise hold separate any funds withheld as or otherwise constituting the Holdback Fund.
Holdback Fund. Upon payment of any Defendant’s Initial Defendant Payment, the Class Settlement Administrator and Individual Settlement Administrator shall begin to hold back certain funds from the Class Settlement Fund and Individual Settlement Fund, respectively, as described more fully below, and ensure they are not used to pay Monetary Awards or any other costs or expenses of settlement except as specified herein. The money held back in the Class Settlement Fund and Individual Settlement Fund, in the aggregate, is known as the “Holdback Fund.” The total amount in the Holdback Fund shall be $500 million. Although the Holdback Fund shall comprise amounts held back from the Class Settlement Fund and Individual Settlement Fund, the Class and Individual Settlement Administrators shall ensure that the Holdback Fund operates as a single fund to satisfy the requirements of Section 8.3.
Holdback Fund. Following the Closing, and subject to and in accordance with the provisions of Section 8 hereof, Acquiror shall not distribute to the Target Shareholder but shall retain in the Holdback Fund (as defined in Section 8.1) one million two hundred fifty thousand (1,250,000) shares of the Acquiror Shares (the "Holdback Shares").
Holdback Fund. Notwithstanding anything to the contrary contained in this Agreement, at the Effective Time, New REIT shall retain from the Merger Consideration and place into a segregated escrow fund to satisfy the indemnification obligations pursuant to Article 10, (a) from the General Partner and each Limited Partner receiving New REIT Shares in the Merger pursuant to Section 1.5(c)(i), a number of New REIT Shares, rounded down to the nearest whole share, equal to (i) the Holdback Percentage, times (ii) the number of New REIT Shares to be issued to such Person pursuant to Sections 1.5(c)(i) and 1.5(c)(ii) (all such shares, the “Holdback Shares”) and (b) from each Limited Partner receiving cash in the Merger pursuant to Section 1.5(c)(iii), an amount of cash equal to (i) the Holdback Percentage, times (ii) the aggregate amount of cash to be issued to such Limited Partner pursuant to Section 1.5(c)(iii) (all such, the “Holdback Cash” and, together with the Holdback Shares, the “Holdback Fund”).
Holdback Fund. (a) At the Closing, Buyer will holdback the Indemnity Holdback Amount (such holdback of shares of Buyer Common Stock, the “Holdback Fund”), with such Holdback Fund to be available to compensate Buyer (on behalf of itself or any other Indemnified Person (as such term is defined in Section 9.2 below)) for Indemnifiable Damages (as such term is defined in Section 9.2 below) pursuant to the indemnification obligations of the Indemnifying Parties (as defined below); it being understood that any shares not subject to forfeiture that would be issuable
Holdback Fund. Parent shall issue the Holdback Shares, as the same may be reduced to offset indemnity claims pursuant to Section 9.02, on the eighteen-month anniversary of the Closing Date. In connection with such withholding of the Holdback Shares and as of the Effective Time, each Company Stockholder eligible to receive Parent Shares at the Closing pursuant to this Agreement will be deemed to have received and deposited with Parent each such holder’s pro rata interest in the Holdback Shares as determined as of the Closing by reference to the number of shares of Company Stock held by such holder immediately prior to Closing (on an as-converted to Company Common Stock basis), relative to the number of shares of Company Stock held by all Company Stockholders eligible to receive Parent Shares at the Closing, without any act of the Company Stockholders. The adoption of this Agreement and the approval of the Merger by the Company Stockholders shall constitute approval of the withholding of the Holdback Shares by Parent, the right of Parent to offset indemnity claims against the Holdback Shares, and of all the arrangements relating thereto, including, without limitation, the appointment of the Stockholders’ Representative.
Holdback Fund. Notwithstanding anything to the contrary contained in this Agreement, at the Effective Time, New REIT shall retain from the Consideration and place into a segregated escrow fund to satisfy the indemnification obligations pursuant to Article 9 (the “Holdback Fund”), a number of New REIT Shares, rounded down to the nearest whole share, equal to (a) the Holdback Percentage, times (b) the number of New REIT Shares to be issued to RLJ Development pursuant to Section 1.5(a) (such shares, the “Holdback Shares”).
Holdback Fund. (i) Notwithstanding anything to the contrary herein, Acquirer shall withhold from each Company Series A Stockholder’s applicable portion of the Aggregate Cash Consideration payable to such Company Series A Stockholder pursuant to Section 1.4(a) such Company Series A Stockholder’s Cash Pro Rata Share of the Cash Holdback Amount, to be held in accordance with Article VIII.
(ii) Notwithstanding anything to the contrary herein, Acquirer shall withhold from each Company Series A Stockholder’s applicable portion of the Aggregate Stock Consideration issuable to such Company Series A Stockholder pursuant to Section 1.4(a) such Company Series A Stockholder’s Stock Pro Rata Share of the Stock Holdback Amount, to be held in accordance with Article VIII.
(iii) The adoption of this Agreement and the approval of the principal terms of the Merger by the Company Stockholders shall constitute, among other things, approval of Acquirer’s withholding of the Cash Holdback Amount and Stock Holdback Amount.
Holdback Fund. A portion of the Purchase Price equal to the Holdback Amount shall be retained by Buyer, and such funds (the “Holdback Fund”), shall be available to compensate the Buyer Indemnified Parties for any claims by such parties for any Losses suffered or incurred by them and for which they are entitled to recovery under this Article X.
Holdback Fund. Notwithstanding anything to the contrary contained in this Agreement, at the Effective Time, New REIT shall retain from the Consideration and place into a segregated escrow fund to satisfy the indemnification obligations pursuant to Article 9 (the ‘Holdback Fund’), a number of OP Units, rounded down to the nearest whole unit, equal to (a) the Holdback Percentage, times (b) the number of OP Units to be issued to RLJ Development pursuant to Section 1.5(a) (such units, the ‘Holdback Shares’).”
(e) Section 2.2(a) of the Contribution Agreement is deleted in its entirety and replaced with the following:
(a) As soon as reasonably practicable after the Effective Time, New REIT shall:
(i) subject to Section 1.7, cause the Operating Partnership to issue the OP Units constituting the Consideration to RLJ Development;
(ii) deliver to RLJ Development an Assignment and Assumption Agreement, in the form attached as Exhibit B (the “Assignment and Assumption Agreement”), duly executed by the Operating Partnership; and
(iii) deliver to RLJ Development such other certificates, instruments or documents as RLJ Development may reasonably request, as are required pursuant to the provisions of this Agreement or as otherwise are necessary or appropriate to transfer the Contributed Assets and Assumed Liabilities to the Operating Partnership in accordance with the terms and conditions hereof and consummate the transactions contemplated hereby.”
(f) The phrase “to New REIT” in Section 2.2(b)(iii) of the Contribution Agreement is deleted and replaced with the phrase “to the Operating Partnership”.
(g) The phrase “in New REIT” in Section 2.2(b)(iv) of the Contribution Agreement is deleted and replaced with the phrase “in the Operating Partnership”.
(h) Section 2.2(c) of the Contribution Agreement is deleted in its entirety and replaced with the following:
