Holdback Fund. (a) At the Closing, Purchaser shall withhold the Holdback Amount from the Contingent Consideration payable and/or issuable to the Selling Securityholders pursuant to Section 1.5(a) (the aggregate amount of cash so held by Purchaser from time to time, the “Holdback Fund”). The Holdback Fund shall constitute partial security for the benefit of Purchaser (on behalf of itself or any other Indemnified Person) with respect to any Indemnifiable Damages pursuant to the indemnification obligations of the Selling Securityholders under this Article IX. Subject to Section 9.4, Purchaser shall hold the Holdback Fund until 11:59 p.m. local time on the date (the “Holdback Release Date”) that is 12 months after the Closing (the “Holdback Period”). The Selling Securityholders shall not receive interest or other earnings on the cash in the Holdback Fund. Neither the Holdback Fund (including any portion thereof) nor any beneficial interest therein may be pledged, subjected to any Encumbrance, sold, assigned or transferred by any Selling Securityholder or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability of any Selling Securityholder, in each case prior to the distribution of the Holdback Fund to any Selling Securityholder in accordance with Section 9.1(b), except that each Selling Securityholder shall be entitled to assign such Selling Securityholder’s rights to such Selling Securityholder’s Pro Rata Share of the Holdback Fund by will, by the laws of intestacy or by other operation of law.
(b) Within five Business Days following the Holdback Release Date, Purchaser (or its agent) will distribute to each Selling Securityholder such Selling Securityholder’s Pro Rata Share of the Holdback Fund less that portion of the Holdback Fund that is determined, in the reasonable judgment of Purchaser, to be necessary to satisfy all unsatisfied or disputed claims for indemnification specified in any Claim Certificate delivered to the Equityholders’ Representative on or prior to the Holdback Release Date in accordance with this Article IX, which portion shall remain in the Holdback Fund with the applicable portion to be released as each claim for Indemnifiable Damages is resolved or satisfied.
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. 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. (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. 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. 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:
Holdback Fund. Satisfaction of Indemnification Claim...........................................43
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.
