Common use of Holdback Shares Clause in Contracts

Holdback Shares. A total of Five Hundred Thousand (500,000) shares of Common Stock (such shares, less any shares that are withheld to satisfy Assignor’s indemnity obligations as set forth in Section 10.2 below referred to as the “Holdback Shares”), will be issued no later than March 31, 2010 (or, if the Merger has not been completed by that date, then within ten (10) business days after the earlier to occur of the closing of the Merger or the Subsequent Closing). In the event that Assignee is a party to a merger transaction that is completed before the Holdback Shares are issued in which the Common Stock of Assignee is converted into the right to receive shares of the surviving corporation (or its parent) in the merger, the term “Holdback Shares” shall mean such number and kind of shares of stock as would be issuable in the merger with respect to the number of Holdback Shares that Assignor is entitled to receive. The Holdback Shares shall initially be registered in the name of, and be deposited with, a person or third party institution satisfactory to Assignee as escrow agent (the “Escrow Agent”) as nominee for Assignor pursuant to a customary escrow agreement. As a condition of issuing the Holdback Shares to the Escrow Agent as described above, Assignor agrees to execute such a customary escrow agreement as Escrow Agent and Assignee may reasonably request. Such shares shall be beneficially owned by Assignor. During the period that the Holdback Shares are held by the Escrow Agent, Assignor (and any other permitted holder of Holdback Shares) will retain and will be able to exercise all voting, dispositive, and other incidents of ownership of the Holdback Shares, to the extent consistent with the terms and conditions of this Agreement.

Holdback Shares. A total of Five Hundred Thousand (500,000) shares of Common Stock (such shares, less If any shares that are withheld to satisfy Assignor’s indemnity obligations as set forth in Section 10.2 below referred to as the “Holdback Shares”), will be issued no later than March 31, 2010 (or, if the Merger has not been completed by that date, then within ten (10) business days after the earlier to occur of the closing of the Merger or the Subsequent Closing). In the event that Assignee is a party to a merger transaction that is completed before the Holdback Shares are issued in which the Common Stock of Assignee is converted into the right to receive shares of the surviving corporation (or its parent) in the merger, the term “Holdback Shares” shall mean such number and kind of shares of stock as would be issuable in the merger with respect deliverable to the number Pledgors pursuant to the Share Exchange Agreement and in accordance with this Agreement, (i) the Escrow Agent covenants and agrees to execute all such instruments of Holdback Shares that Assignor is entitled to receive. The Holdback Shares shall initially be registered in the name of, transfer (including stock powers and be deposited with, a person or third party institution satisfactory to Assignee as escrow agent (the “Escrow Agent”assignment documents) as nominee for Assignor pursuant are customarily executed to a customary escrow agreement. As a condition evidence and consummate the transfer of issuing the Holdback Shares to the Pledgors, to the extent not done so in accordance with Section 2, and (ii) following its receipt of the documents referenced in Section 6(i), the Company and Escrow Agent covenant and agree to cooperate with the Transfer Agent so that the Transfer Agent promptly reissues such Holdback Shares in the applicable Pledgor’s name and delivers the same as described above, Assignor agrees to execute directed by such a customary escrow agreement Pledgor. Until such time as Escrow Agent and Assignee may reasonably request. Such shares shall be beneficially owned by Assignor. During the period that (if at all) the Holdback Shares are required to be delivered pursuant to the Share Exchange Agreement and this Agreement, any dividends payable in respect of the Holdback Shares and all voting rights applicable to the Holdback Shares shall be retained by the Pledgors. Should the Escrow Agent receive dividends or voting materials, such items shall not be held by the Escrow Agent, Assignor (but shall be passed immediately on to the Pledgors and shall not be invested or held for any other permitted holder of Holdback Shares) will retain and will be able time longer than is needed to exercise all voting, dispositive, and other incidents of ownership effectively re-route such items to the Pledgors. In the event that the Escrow Agent receives a communication requiring the conversion of the Holdback SharesShares to cash or the exchange of the Holdback Shares for that of an acquiring company, the Escrow Agent shall solicit and follow the written instructions of the Pledgors; provided, that the cash or exchanged shares are instructed to be redeposited into the extent consistent with the terms and conditions of this AgreementEscrow Account. The Pledgors shall be responsible for all taxes resulting from any such conversion or exchange.

Holdback Shares. A total Subject to the terms and conditions of Five Hundred Thousand this Agreement, Parent shall initially refrain from issuing such number of Parent Ordinary Shares as is equal to the quotient of: (500,000i) shares of Common Stock the Holdback Amount, divided by (ii) the Agreement Date Share Value (such shares, less any shares that are withheld number of Parent Ordinary Shares subject to satisfy Assignor’s indemnity obligations as set forth in Section 10.2 below issuance being referred to herein as the “Holdback Shares”). If a Parent Indemnified Person makes a claim for indemnification pursuant to this ARTICLE IX (a “Claim”) between the Closing Date and the date that is the later of: (A) eighteen (18) months thereafter at 11:59pm New York time, will be issued no later than March 31, 2010 and (or, if B) the Merger has not been completed by that dateSecond Earn-Out Payment Date at 11:59pm New York time (the “Holdback Period”) and such Claim becomes an Agreed Claim pursuant to this ARTICLE IX, then within ten (10) business days after the earlier to occur such number of the closing of the Merger or the Subsequent Closing). In the event that Assignee is a party to a merger transaction that is completed before the Holdback Shares as are issued determined by dividing the amount of Losses determined in which respect of such Agreed Claim, by the Common Stock of Assignee is converted into the right Agreement Date Share Value, shall cease to receive shares of the surviving corporation (or its parent) in the merger, the term “be Holdback Shares” shall mean such number Shares subject to issuance and kind of shares of stock as would be issuable in the merger with respect to the number of Holdback Shares that Assignor is entitled subject to receiveissuance shall be reduced accordingly. The On the second Business Day following the last day of the Holdback Shares shall initially be registered in the name of, and be deposited with, a person or third party institution satisfactory to Assignee as escrow agent Period (the “Escrow AgentRelease Date”) as nominee for Assignor pursuant to a customary escrow agreement. As a condition ), Parent shall deposit the balance of issuing the Holdback Shares (which for the avoidance of doubt shall represent the initial number of Holdback Shares less those initial Holdback Shares that are no longer subject to issuance as Holdback Shares pursuant to the Escrow Agent provisions of this Section 9.1) with the Paying Agent, provided that if there are any Claims which were submitted within the Holdback Period but which have not be yet become Agreed Claims as described aboveof the Release Date, Assignor agrees to execute such a customary escrow agreement as Escrow Agent and Assignee may reasonably request. Such shares Buyer shall be beneficially owned entitled to refrain from issuing such number of Holdback Shares as is derived from dividing the amount of such Losses as have been claimed, by Assignorthe Agreement Date Share Value, until such Claim has become an Agreed Claim pursuant to this ARTICLE IX. During On the period second Business Day following the date that any such Claims referred to in the proviso of the immediately sentence become Agreed Claims pursuant to this ARTICLE IX, any Holdback Shares that were not released on the Release Date as a result of the proviso in the immediately preceding sentence (less any Holdback Shares (if any) that cease to be Holdback Shares in order to satisfy any Losses for such Claims) shall be deposited with the Paying Agent. For the avoidance of doubt, the Holdback Shares are held by the Escrow Agent, Assignor (and any other permitted holder of Holdback Shares) will retain and will be able to exercise all voting, dispositive, and other incidents of ownership of the Holdback Shares, to the extent consistent with the terms and conditions of this AgreementAmount shall not accrue interest.

Holdback Shares. A total (a) If any Holdback Shares are used to satisfy any such indemnification obligations, the value of Five Hundred Thousand each Holdback Share so used shall be deemed to be the 5-Day Average over the five consecutive trading days ending on the trading day immediately prior to the applicable claim is settled. (500,000b) shares The value of Common Stock the Holdback Shares, as determined in accordance with Section 8.3.10(a), shall be available to compensate the Parent Indemnified Persons 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 VIII, which compensation will occur through the forfeiture and cancellation of the Holdback Shares in accordance with this Section 8.3.10. Each claim for Losses that is to be satisfied through the forfeiture of a portion or all of the Holdback Shares pursuant to this ARTICLE VIII shall be satisfied, as to each Indemnifying Party, by the forfeiture and cancellation of such Indemnifying Party’s Holdback Shares with a value equal to such Indemnifying Party’s Pro Rata Share of the Losses to be so satisfied. Until and unless the Holdback Shares are released to the Indemnifying Parties pursuant to Section 8.3.10(c), the Indemnifying Parties’ shall, and do hereby, pledge and grant a security interest in the Holdback Shares to Parent on its own behalf and on behalf of the other Indemnified Parties. Each Effective Time Holder will take all such actions to effectuate all forfeitures and cancellations of any Holdback Share in accordance with the terms of this Agreement. (c) On the 18 month anniversary of the Effective Date (the “Holdback Shares Release Date”), the Remaining Holdback Shares, if any, less that number of Holdback Shares that is determined, in the reasonable judgment of Parent, to be necessary to satisfy all unsatisfied or disputed claims for indemnification delivered to the Stockholders’ Representative on or prior to the Holdback Shares Release Date (each, an “Unresolved Claim”), after taking into account any non-taxable stock dividends retained by Parent pursuant to Section 5.16.7 which shall also be retained pending resolution of all Unresolved Claims (any such shares, less any shares that are withheld to satisfy Assignor’s indemnity obligations as set forth in Section 10.2 below referred to as the “Unresolved Claim Holdback Shares”), will shall be issued no later than March 31, 2010 (or, if released by Parent to the Merger has not been completed by that date, then within ten (10) business days after the earlier Effective Time Holders in proportion to occur their Pro Rata Share of the closing of the Merger or the Subsequent Closing)Remaining Holdback Value. In the event that Assignee is a party to a merger transaction that is completed before the The Unresolved Claim Holdback Shares are issued in which the Common Stock of Assignee is converted into the right to receive shares of the surviving corporation (or its parent) in the merger, the term shall remain “Holdback Shares” shall mean such number and kind of shares of stock as would be issuable in past the merger with respect Holdback Shares Release Date subject to the number of this Section 8.3.10(c). Any Unresolved Claim Holdback Shares that Assignor is entitled are not forfeited by the Effective Time Holders and cancelled by Parent based on an award to receive. The Holdback Shares Parent upon the resolution of all Unresolved Claims, shall initially be registered in the name of, immediately released from such restrictions following resolution of such Unresolved Claims and any non- taxable stock dividends that continue to be deposited with, a person or third party institution satisfactory to Assignee as escrow agent (the “Escrow Agent”) as nominee for Assignor retained by Parent pursuant to a customary escrow agreement. As a condition Section 5.16.7 and this Section 8.3.10(c) and not awarded to Parent upon the resolution of issuing the Holdback Shares such Unresolved Claims shall be distributed by Parent to the Escrow Agent Effective Time Holders as described above, Assignor agrees to execute such a customary escrow agreement soon as Escrow Agent and Assignee may reasonably request. Such shares shall be beneficially owned by Assignor. During the period that the Holdback Shares are held by the Escrow Agent, Assignor practicable (and any other permitted holder in no event later than five Business Days) following resolution of such Unresolved Claims, whereupon such shares will no longer be Holdback Shares) will retain and will be able to exercise all voting, dispositive, and other incidents of ownership of the Holdback Shares, to the extent consistent with the terms and conditions of this Agreement.. 8.4

Holdback Shares. A total (a) If the Closing occurs, the Holdback Shares shall be deposited with the Escrow Agent pursuant to Section 2.3(b) and held by the Escrow Agent in escrow in accordance with the terms of Five Hundred Thousand this Agreement and the Escrow Agreement. If at any time on or prior to the Holdback Deadline Purchaser delivers to Seller and the Escrow Agent a Claim Notice that Purchaser is entitled under Section 12.3 to indemnity, payment, and reimbursement from the balance of the Holdback Shares for any alleged Damages, Seller shall, within thirty (500,00030) shares of Common Stock (such shares, less any shares that are withheld to satisfy Assignor’s indemnity obligations as set forth in Section 10.2 below referred to as the “Holdback Shares”), will be issued no later than March 31, 2010 (or, if the Merger has not been completed by that date, then within ten (10) business days after the earlier receipt of any such Claim Notice, at its option either deliver to occur of Purchaser and the closing of Escrow Agent (i) written instructions instructing the Merger or the Subsequent Closing). In the event that Assignee is Escrow Agent to disburse to Purchaser a party to a merger transaction that is completed before the Holdback Shares are issued in which the Common Stock of Assignee is converted into the right to receive shares of the surviving corporation (or its parent) in the merger, the term “Holdback Shares” shall mean such number and kind of shares of stock as would be issuable in the merger with respect to the number of Holdback Shares that Assignor is entitled to receive. The Holdback Shares shall initially be registered in the name of, and be then deposited with, a person or third party institution satisfactory to Assignee as escrow agent (the “Escrow Agent”) as nominee for Assignor pursuant to a customary escrow agreement. As a condition of issuing the Holdback Shares to with the Escrow Agent equal to the quotient obtained by dividing (A) an amount equal to all or a stipulated amount of such alleged Damages set forth in such Claim Notice to such account(s) as described abovePurchaser designates in such Claim Notice by (B) the Share Price, Assignor agrees (ii) a notice that Seller disputes that the members of the Purchaser Group are entitled to execute such a customary escrow agreement as Escrow Agent indemnity, payment, and Assignee may reasonably request. Such shares reimbursement of all or any portion (which shall be beneficially owned by Assignorstipulated in Seller’s notice) of the amount of the alleged Damages in Purchaser’s Claim Notice, or (iii) any combination of the foregoing. During Failure of Seller to deliver a notice or the period timely delivery of Seller’s notice stipulating that Seller disputes any portion of the Holdback Shares amount of Damages to which Purchaser claims the member of the Purchaser Group are held entitled shall constitute or be deemed to constitute notice that such amount in dispute shall not be released by the Escrow AgentAgent to Purchaser and that the Escrow Agent shall continue to hold the applicable Holdback Shares until the dispute has been fully resolved by final non-appealable court order, Assignor (and any other permitted holder of Holdback Shares) will retain and will be able to exercise all votingarbitrator’s decision, dispositivesettlement, and other incidents of ownership of the Holdback Shares, to the extent consistent with the terms and conditions of this Agreementor otherwise.