Common use of Holdback Fund Clause in Contracts

Holdback Fund. (a) At the Effective Time, Acquirer shall withhold the Holdback Amount from the Total Merger Consideration issuable pursuant to Section 1.3(a) (the aggregate amount of shares of Acquirer Common Stock and cash so held by Acquirer from time to time, together with any non-taxable stock dividends declared and paid in respect of such shares, the “Holdback Fund”), which Holdback Fund shall be governed by this Agreement. The Holdback Fund shall constitute partial security for the benefit of Acquirer (on behalf of itself or any other Indemnified Person) with respect to any Indemnifiable Damages pursuant to the indemnification obligations of the Converting Holders under this Article VI. Subject to Section 6.5, Acquirer shall hold the Holdback Fund until 11:59 p.m. Pacific Time on the date (the “Holdback Release Date”) that is fifteen months after the Closing Date. Except to the extent there is a cancellation of shares of Acquirer Common Stock held in the Holdback Fund in connection with the settlement of Indemnifiable Damages and subject to the terms of any applicable Vesting Agreement, shares of Acquirer Common Stock held in the Holdback Fund shall be treated by Acquirer as issued and outstanding stock of Acquirer, and the Converting Holders shall be entitled to exercise voting rights and to receive dividends with respect to such shares (other than stock dividends, which shall be withheld by Acquirer and included as part of the Holdback Fund and added thereto). The Converting Holders shall not receive interest or other earnings on the shares of Acquirer Common Stock or cash held in the Holdback Fund (other than as set forth in the immediately preceding sentence). 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 Converting Holder or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability of any Converting Holder, in each case prior to the distribution of the Holdback Fund to any Converting Holder in accordance with Section 6.1(b), except that each Converting Holder shall be entitled to assign such Converting Holder’s rights to such Converting Holder’s Pro Rata Share of the Holdback Fund by will, to a revocable grantor trust for estate planning purposes, by the laws of intestacy or by other operation of law.

Holdback Fund. (a) At When making the Effective Time, Acquirer shall withhold the Holdback Amount from the Total Merger Consideration issuable issuances of Parent Common Stock pursuant to Section 1.3(a1.5(a) of the Merger Agreement, Parent shall withhold from the Principal Stockholders an aggregate of thirty percent (30%) of the total shares of Parent Common Stock otherwise issuable thereunder to the Principal Stockholders (as adjusted pursuant to Section 1.5(c) of the Merger Agreement) (the aggregate amount of shares of Acquirer Common Stock and cash so held by Acquirer from time to time, together with any non-taxable stock dividends declared and paid in respect of such shares, the “"Holdback Fund”Stock"), which Holdback Fund shall be governed by this Agreement. The Holdback Fund shall constitute partial Stock will be issued in the name of each Principal Stockholder in the appropriate amounts and held back by Parent as security for the benefit performance of Acquirer (the indemnity obligations of the Principal Stockholders under Section 3 hereof. Except for shares of Holdback Stock that are offset for indemnification claims pursuant to Section 3 hereof, all dividends payable on behalf the shares of itself or any other Indemnified Person) Holdback Stock shall be paid currently to the Principal Stockholders and all voting rights with respect to any Indemnifiable Damages pursuant to the indemnification obligations shares of Holdback Stock shall be exercisable by the Principal Stockholders or their authorized agent(s). The Parent Common Stock otherwise distributable as of the Converting Holders under Effective Time to each Principal Stockholder who is subject to this Article VI. Subject to Section 6.5, Acquirer shall hold the Holdback Fund until 11:59 p.m. Pacific Time on the date (the “Holdback Release Date”) that is fifteen months after the Closing Date. Except to the extent there is a cancellation of shares of Acquirer Common Stock held in the Holdback Fund Agreement in connection with the settlement Merger as provided in Section 1.5(a) of Indemnifiable Damages the Merger Agreement shall be proportionally reduced to reflect the amount of Parent Common Stock required to be withheld pursuant to this Section 1 and subject such Holdback Stock shall be delivered to the Principal Stockholders only in accordance with the terms of this letter agreement. On the date which is thirteen (13) months after the date of Closing, subject to reduction for any applicable Vesting Agreementindemnification claims of Parent pursuant to Section 3 hereof, Parent shall release the Holdback Stock to each Principal Stockholder as applicable. For purposes of satisfying the indemnification obligations pursuant to Section 3 hereof, the value of each share of Holdback Stock shall be equal to the average closing sales price as reported in the NYSE Composite Transaction Tape (as reported in The Wall Street Journal or, if not reported therein, any other nationally recognized authoritative source) of shares of Acquirer Parent Common Stock held in for the Holdback Fund shall be treated by Acquirer as issued and outstanding stock of Acquirer, and the Converting Holders shall be entitled to exercise voting rights and to receive dividends with respect to such shares twenty (other than stock dividends, which shall be withheld by Acquirer and included as part of the Holdback Fund and added thereto). The Converting Holders shall not receive interest or other earnings 20) consecutive trading day period ending on the shares of Acquirer Common Stock or cash held in the Holdback Fund (other than as set forth in the trading day immediately preceding sentencethe date upon which such indemnification obligations are satisfied (the "Stock Value"). 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 Converting Holder or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability of any Converting Holder, in each case prior to the distribution of the Holdback Fund to any Converting Holder in accordance with Section 6.1(b), except that each Converting Holder shall be entitled to assign such Converting Holder’s rights to such Converting Holder’s Pro Rata Share of the Holdback Fund by will, to a revocable grantor trust for estate planning purposes, by the laws of intestacy or by other operation of law.

Holdback Fund. (a) At the Effective Time, Acquirer shall withhold the Holdback Amount from the Total Merger Consideration issuable pursuant to Section 1.3(a) (the aggregate amount of shares of Acquirer Common Stock and cash so held by Acquirer from time to time, together with any non-taxable stock dividends declared and paid in respect of such shares, the “Holdback Fund”), which Holdback Fund shall be governed by this Agreement. The Holdback Fund shall constitute partial security for the benefit of Acquirer (on behalf of itself or any other Indemnified Person) with respect to any Indemnifiable Damages pursuant to the indemnification obligations of the Converting Holders under this Article VI. V. Subject to Section 6.55.4, Acquirer shall hold the Holdback Fund until 11:59 p.m. Pacific Time on the date (the “Holdback Release Date”) that is fifteen 18 months after the Closing Date. Except to the extent there is a cancellation of shares of Acquirer Common Stock held in the Holdback Fund in connection with the settlement of Indemnifiable Damages and subject to the terms of any applicable Vesting Agreement, shares of Acquirer Common Stock held in the Holdback Fund shall be treated by Acquirer as issued and outstanding stock of Acquirer, and the Converting Holders shall be entitled to exercise voting rights and to receive dividends with respect to such shares (other than stock dividends, which shall be withheld by Acquirer and included as part of the Holdback Fund and added thereto). The Converting Holders shall not receive interest or other earnings on the shares of Acquirer Common Stock or cash held in the Holdback Fund (other than as set forth in the immediately preceding sentence). 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 Converting Holder or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability of any Converting Holder, in each case prior to the distribution of the Holdback Fund to any Converting Holder in accordance with Section 6.1(b5.1(b), except that each Converting Holder shall be entitled to assign such Converting Holder’s rights to such Converting Holder’s Pro Rata Share of the Holdback Fund by will, to a revocable grantor trust for estate planning purposes, by the laws of intestacy or by other operation of law.

Holdback Fund. (a) At Promptly after the Effective Time, Acquirer Parent shall withhold the Holdback Amount from the Total Merger Consideration issuable pursuant to Section 1.3(a) (the aggregate amount a number of shares of Acquirer Parent Common Stock and cash so held by Acquirer from time equal to time, together with any non-taxable stock dividends declared and paid in respect of such shares, the Initial Holdback Share Number. Such holdback fund (the “Holdback Fund”), which Holdback Fund ) shall be governed solely by this Agreementthe terms set forth herein. The Holdback Fund shall constitute be partial security for the benefit of Acquirer (on behalf of itself or any other Indemnified Person) with respect to any Indemnifiable Damages pursuant to the indemnification indemnity obligations of the Converting Holders under provided for in this Article VI. Subject to VII Section 6.57.2 hereof and for any claims by an Indemnified Party arising out of this Agreement or the Related Agreements and the transactions contemplated herein and therein, Acquirer shall hold and the Holdback Fund until 11:59 p.m. Pacific Time on shall be available to compensate the date (Parent Indemnified Parties for any claims by such parties for any Losses paid, suffered, incurred or properly accrued by them and for which they are entitled to recovery. Interests in the “Holdback Release Date”) that is fifteen months after the Closing DateFund shall be nontransferable. Except to the extent there is a cancellation of No shares of Acquirer Parent Common Stock held in the Holdback Fund in connection with the settlement of Indemnifiable Damages and subject to the terms of any applicable Vesting Agreement, shares of Acquirer Common Stock held in the Holdback Fund shall be treated by Acquirer as issued and outstanding stock of Acquirer, and the Converting Holders shall be entitled to exercise voting rights and to receive dividends with respect to such shares (other than stock dividends, which shall be withheld by Acquirer and included as part of the Holdback Fund and added thereto). The Converting Holders shall not receive interest or other earnings on the shares of Acquirer Common Stock or cash held in the Holdback Fund (other than as set forth in the immediately preceding sentence). Neither the Holdback Fund (including any portion thereof) nor any beneficial interest therein may be pledged, subjected to any Encumbrance, sold, assigned or transferred transferred, including by operation of law, by any Converting Holder Holdback Participant or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability liability of any Converting Holdersuch Holdback Participant, in each case prior to the distribution delivery to such Holdback Participant of such Holdback Participant’s portion of the Holdback Fund as provided herein. Except for dividends paid in stock declared with respect to the shares of Parent Common Stock held in the Holdback Fund, any Converting Holder cash dividends, dividends payable in accordance securities or other distributions of any kind made in respect of the shares of Parent Common Stock held in the Holdback Fund shall become and be deemed to be part of the Holdback Fund. Each Holdback Participant will have voting rights with Section 6.1(b), except that each Converting Holder shall be entitled respect to assign such Converting Holder’s rights the shares of Parent Common Stock held in the Holdback Fund with respect to such Converting HolderHoldback Participant so long as such shares are held in the Holdback Fund. Except as set forth herein, while the shares of Parent Common Stock held in the Holdback Fund remain in Parent’s Pro Rata Share possession pursuant to this Agreement, the Holdback Participants will retain and will be able to exercise all other incidents of ownership of such shares. Parent is hereby granted the power to effect any transfer of shares of Parent Common Stock that comprises part of the Holdback Fund and that is contemplated by willor in accordance with this Agreement, subject to the terms and conditions set forth in this Agreement. For the purpose of compensating the Parent Indemnified Parties for their Losses pursuant to and in accordance with this Article VII, shares of Parent Common Stock in the Holdback Fund shall be valued on a revocable grantor trust for estate planning purposes, per share basis at the Holdback Per Share (Cash) Value. Any Losses satisfied out of the Holdback Fund shall be borne proportionally by the laws of intestacy or by other operation of lawHoldback Participants in proportion to each such Holdback Participant’s Pro Rata Portion.

Holdback Fund. (a) At Promptly after the Effective Time, Acquirer Parent shall withhold the Holdback Amount from the Total Merger Consideration issuable pursuant to Section 1.3(a) (the aggregate amount a number of shares of Acquirer Parent Common Stock and cash so held by Acquirer from time equal to time, together with any non-taxable stock dividends declared and paid in respect of such shares, the Initial Holdback Share Number. Such holdback fund (the “Holdback Fund”), which Holdback Fund ) shall be governed solely by this Agreementthe terms set forth herein. The Holdback Fund shall constitute be partial security for the benefit of Acquirer (on behalf of itself or any other Indemnified Person) with respect to any Indemnifiable Damages pursuant to the indemnification indemnity obligations of the Converting Holders under provided for in this Article VI. Subject to VII Section 6.57.2 hereof and for any claims by an Indemnified Party arising out of this Agreement or the Related Agreements and the transactions contemplated herein and therein, Acquirer shall hold and the Holdback Fund until 11:59 p.m. Pacific Time on shall be available to compensate the date (Parent Indemnified Parties for any claims by such parties for any Losses paid, suffered, incurred or properly accrued by them and for which they are entitled to recovery. Interests in the “Holdback Release Date”) that is fifteen months after the Closing DateFund shall be nontransferable. Except to the extent there is a cancellation of No shares of Acquirer Parent Common Stock held in the Holdback Fund in connection with the settlement of Indemnifiable Damages and subject to the terms of any applicable Vesting Agreement, shares of Acquirer Common Stock held in the Holdback Fund shall be treated by Acquirer as issued and outstanding stock of Acquirer, and the Converting Holders shall be entitled to exercise voting rights and to receive dividends with respect to such shares (other than stock dividends, which shall be withheld by Acquirer and included as part of the Holdback Fund and added thereto). The Converting Holders shall not receive interest or other earnings on the shares of Acquirer Common Stock or cash held in the Holdback Fund (other than as set forth in the immediately preceding sentence). Neither the Holdback Fund (including any portion thereof) nor any beneficial interest therein may be pledged, subjected to any Encumbrance, sold, assigned or transferred transferred, including by operation of law, by any Converting Holder Holdback Participant or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability liability of any Converting Holdersuch Holdback Participant, in each case prior to the distribution delivery to such Holdback Participant of such Holdback Participant’s portion of the Holdback Fund as provided herein. Except for dividends paid in stock declared with respect to the shares of Parent Common Stock held in the Holdback Fund, any Converting Holder cash dividends, dividends payable in accordance securities or other distributions of any kind made in respect of the shares of Parent Common Stock held in the Holdback Fund shall become and be deemed to be part of the Holdback Fund. Each Holdback Participant will have voting rights with Section 6.1(b), except that each Converting Holder shall be entitled respect to assign such Converting Holder’s rights the shares of Parent Common Stock held in the Holdback Fund with respect to such Converting HolderHoldback Participant so long as such shares are held in the Holdback Fund. Except as set forth herein, while the shares of Parent Common Stock held in the Holdback Fund remain in Parent’s Pro Rata Share possession pursuant to this Agreement, the Holdback Participants will retain and will be able to exercise all other incidents of ownership of such shares. Parent is hereby granted the power to effect any transfer of shares of Parent Common Stock that comprises part of the Holdback Fund and that is contemplated by willor in accordance with this Agreement, subject to the terms and conditions set forth in this Agreement. For the purpose of compensating the Parent Indemnified Parties for their Losses pursuant to and in accordance with this Article VII, shares of Parent Common Stock in the Holdback Fund shall be valued on a revocable grantor trust for estate planning purposes, by per share basis at the laws of intestacy or by other operation of law.Holdback Per Share (Cash)

Holdback Fund. (a) At the Effective TimeClosing, Acquirer shall withhold Buyer will holdback the Indemnity Holdback Amount from (for purposes of this calculation, using the Total Merger Consideration issuable pursuant to Section 1.3(aIndemnity Holdback Percentage) (the aggregate amount such holdback of shares of Acquirer Buyer Common Stock and cash so held by Acquirer from time to time, together with any non-taxable stock dividends declared and paid in respect of such sharesStock, the “Holdback Fund”), which with such Holdback Fund shall to be governed by this Agreement. The Holdback Fund shall constitute partial security for the benefit of Acquirer available to compensate Buyer (on behalf of itself or any other Indemnified PersonPerson (as such term is defined in Section 9.2 below)) with respect to any for Indemnifiable Damages (as such term is defined in Section 9.2 below) pursuant to the indemnification obligations of the Converting Holders under Indemnifying Parties (as defined below) and subject to the limitations and provisions of this Article VIIV and Sections 2.20 (No Liability) and 3.5 (No Liability); it being understood that vested shares that would be issuable to a Seller under Section 1.2(a) shall first be allocated to the Holdback Fund prior to being allocated to shares to be issued to such Seller pursuant thereto. Subject to Section 6.5, Acquirer Buyer shall hold retain the Holdback Fund until 11:59 p.m. Pacific Time California time on the date that is fifteen (15) months after the Closing (the “Holdback Release Date”) that is fifteen months after the Closing Date). Except to the extent there is a cancellation of shares of Acquirer Buyer Common Stock held in the Holdback Fund in connection with the settlement of Indemnifiable Damages and subject to in accordance with the terms of any applicable Vesting Agreementhereof, shares of Acquirer Buyer Common Stock held in the Holdback Fund shall be treated by Acquirer the Buyer as issued and outstanding stock of AcquirerBuyer, and the Converting Holders Indemnifying Person shall be entitled to all rights associated with such Buyer Common Stock including to exercise voting rights and to receive dividends with respect to such shares shares. No portion (other than stock dividends, which shall be withheld by Acquirer and included as part nor all) of the Holdback Fund and added thereto). The Converting Holders shall not receive interest or other earnings on the shares of Acquirer Common Stock or cash held in the Holdback Fund (other than as set forth in the immediately preceding sentence). Neither the Holdback Fund (including any portion thereof) Fund, nor any beneficial interest therein therein, may be pledged, subjected to any Encumbrance, sold, assigned or transferred transferred, by any Converting Holder Indemnifying Party, or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability of any Converting HolderIndemnifying Party, in each case prior to the distribution disbursement of the Holdback Fund to the Escrow Agent for the benefit of any Converting Holder Indemnifying Party in accordance with Section 6.1(b)9.1(b) below, except that each Converting Holder Indemnifying Party shall be entitled to assign such Converting HolderIndemnifying Party’s rights to such Converting Holder’s Pro Rata Share the shares of Buyer Common Stock withheld in the Holdback Fund (the “Holdback Shares”) by will, to a revocable grantor trust for estate planning purposes, by the laws of intestacy or by other operation of law.