Common use of Protection of Escrow Fund Clause in Contracts

Protection of Escrow Fund. (i) Each of the Stockholders shall have voting rights with respect to the shares of Parent Common Stock contributed to and held in the Escrow Fund on behalf of such Stockholder (and on any voting securities added to the Escrow Fund in respect of such shares of Parent Common Stock). The Escrow Agent shall from time to time deliver such proxies, consents and other materials and documents as may be necessary to enable the Stockholders to exercise such voting rights, and shall instruct the Stockholders to return any instructions with respect to such voting rights to the Escrow Agent, who shall tabulate all votes received by the Stockholders and shall vote on their behalf in accordance with the instructions given by each such Stockholder. In the absence of instructions by any such Stockholder, the Escrow Agent shall not vote any of the shares held on behalf of such Stockholder. (ii) Cash dividends, and any non-cash taxable dividends or distributions, on any shares of Parent Common Stock in the Escrow Fund shall be distributed to the Stockholders according to their Pro Rata Portion, and shall not become a part of the Escrow Fund. Any shares of Parent Common Stock or other equity securities issued or distributed by Parent after the Effective Time in a nontaxable transaction (“New Shares”) in respect of Parent Common Stock in the Escrow Fund which have not been released from the Escrow Fund shall be added to the Escrow Fund and become a part thereof. The parties hereto (other than the Escrow Agent) agree that the Stockholders are the owners of any stock in the Escrow Fund. New Shares issued in respect of shares of Parent Common Stock which have been released from the Escrow Fund shall not be added to the Escrow Fund but shall be distributed to the record holders thereof. (iii) The parties hereto agree to provide the Escrow Agent with a certified tax identification number by signing and returning a Form W-9 (or original Form W-8 BEN, in case of non-U.S. persons) to the Escrow Agent, upon the execution and delivery of this Agreement.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Taleo Corp)

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Protection of Escrow Fund. (i) Each The Escrow Agent shall hold and safeguard the Escrow Fund during the Escrow Period, shall treat such fund as a trust fund in accordance with the terms of this Agreement and not as the property of any Indemnified Party or any Indemnifying Party, and shall hold and dispose of the Stockholders Escrow Fund only in accordance with the terms of this Article VI. (ii) The parties hereto agree that, for United States federal income tax purposes, the Shareholders shall have voting rights with respect to be the shares record owner of Parent Common Stock contributed to and the Escrow Fund until all amounts held in the Escrow Fund are distributed in accordance with this Agreement. The Shareholders shall be responsible for any Taxes due with respect to any interest or other earnings on behalf the Escrow Fund. (iii) During the term of such Stockholder (and on any voting securities added to this Agreement, the Escrow Fund shall be invested and reinvested by the Escrow Agent in respect accordance with the specific written instructions by the Purchaser and the Shareholder Representative from time to time. Investments pursuant to such investment instructions described above shall in all instances be subject to availability (including any time-of-day requirements). In no instance shall the Escrow Agent have any obligation to provide investment advice of such shares of Parent Common Stock)any kind. The Escrow Agent shall be authorized at all times and from time to time deliver such proxies, consents and other materials and documents to liquidate any investment of the Escrow Agent as may be necessary to enable provide available cash to make any release, disbursement or payment called for under the Stockholders terms of this Agreement. The Escrow Agent shall have no responsibility or liability for any losses resulting from liquidation of the Escrow Fund (such as liquidation prior to exercise such voting rightsmaturity). (iv) The Escrow Agent shall be responsible for reporting, and shall instruct if required, to the Stockholders Internal Revenue Service any disbursements from the Escrow Fund to return the Shareholders. In the event the Escrow Agent is required by any instructions applicable Legal Requirement (as in effect at any time during the Escrow Period) to withhold any amounts with respect to the payment of such voting rights to interest or other earnings on the Escrow Agent, who shall tabulate all votes received by the Stockholders and shall vote on their behalf in accordance with the instructions given by each such Stockholder. In the absence of instructions by any such StockholderFund, the Escrow Agent shall not vote any give prior notice to the Shareholders of the shares held on behalf of such Stockholderamounts required to be so withheld and the reasons therefor. (ii) Cash dividends, and any non-cash taxable dividends or distributions, on any shares of Parent Common Stock in the Escrow Fund shall be distributed to the Stockholders according to their Pro Rata Portion, and shall not become a part of the Escrow Fund. Any shares of Parent Common Stock or other equity securities issued or distributed by Parent after the Effective Time in a nontaxable transaction (“New Shares”) in respect of Parent Common Stock in the Escrow Fund which have not been released from the Escrow Fund shall be added to the Escrow Fund and become a part thereof. The parties hereto (other than the Escrow Agent) agree that the Stockholders are the owners of any stock in the Escrow Fund. New Shares issued in respect of shares of Parent Common Stock which have been released from the Escrow Fund shall not be added to the Escrow Fund but shall be distributed to the record holders thereof. (iii) The parties hereto agree to provide the Escrow Agent with a certified tax identification number by signing and returning a Form W-9 (or original Form W-8 BEN, in case of non-U.S. persons) to the Escrow Agent, upon the execution and delivery of this Agreement.

Appears in 1 contract

Samples: Share Acquisition Agreement (Pc Tel Inc)

Protection of Escrow Fund. (i) The Escrow Agent shall hold and safeguard the Escrow Fund during the Escrow Period and shall hold and dispose of the Escrow Fund only in accordance with the terms of this Section 7.3(c). (ii) The Interested Parties agree that, for Tax reporting purposes, all interest and other income earned from the investment of the Escrow Fund in any Tax year shall, (A) to the extent such interest or other income is distributed by the Escrow Agent to any person or entity pursuant to the terms of this Agreement during such tax year, be reported as allocated to such person or entity and, (B) otherwise, be reported as allocated to the Stockholders in accordance with their respective Escrow Pro Rata Portions. (iii) Each of the Interested Parties hereto agrees to provide the Escrow Agent with a certified tax identification number by signing and returning a Form W-9 (or Form W-8 BEN, in case of non-U.S. persons) to the Escrow Agent upon the execution and delivery of this Agreement. The Interested Parties understand that, in the event their tax identification numbers are not certified to the Escrow Agent, the Internal Revenue Code, as amended from time to time, may require withholding of a portion of any interest or other income earned on the investment of the Escrow Amount. Each of the Interested Parties agrees to instruct the Escrow Agent in writing with respect to the Escrow Agent’s responsibility for withholding and other taxes, assessments or other governmental charges, and to instruct the Escrow Agent with respect to any certifications and governmental reporting that may be required under any laws or regulations that may be applicable in connection with its acting as Escrow Agent under this Agreement. (iv) Neither the Escrow Agent nor its nominee shall be under any duty to take any action to preserve, protect, exercise or enforce any rights or remedies under or with respect to the Parent Common Stock (including without limitation with respect to the exercise of any voting or consent rights, conversion or exchange rights, defense of title, preservation of rights against prior matters or otherwise). Notwithstanding the foregoing, each of the Stockholders shall have voting rights with respect to the shares of Parent Common Stock contributed to and held in the Escrow Fund on behalf of such Stockholder (and on any voting securities added to the Escrow Fund in respect of such shares of Parent Common Stock). The Escrow Agent shall from time to time deliver such proxies, consents and other materials and documents as may be necessary to enable the Stockholders to exercise such voting rights, and shall instruct the Stockholders to return any instructions with respect to such voting rights to the Escrow Agent, who shall tabulate all votes received by the Stockholders and shall vote on their behalf in accordance with the instructions given by each such Stockholder. In the absence of instructions by any such Stockholder, the Escrow Agent shall not vote any of the shares held on behalf of such Stockholder. (iiv) Cash dividends, cash returned by the Stockholder Representative and any non-cash taxable dividends or distributionsdistributions (other than New Shares as defined below), on any shares of Parent Common Stock in the Escrow Fund shall be distributed to the Stockholders according to their Escrow Pro Rata Portion, and shall not become a part of the Escrow Fund. Any shares of Parent Common Stock or other equity securities issued or distributed by Parent after the Effective Time in (including shares issued upon a nontaxable transaction stock split) (“New Shares”) in respect of Parent Common Stock in the Escrow Fund which have not been released from the Escrow Fund shall be added to the Escrow Fund and become a part thereof. The parties hereto (other than the Escrow Agent) agree that the Stockholders are the owners of any stock in the Escrow Fund. New Shares issued in respect of shares of Parent Common Stock which have been released from the Escrow Fund shall not be added to the Escrow Fund but shall be distributed to the record holders thereof. (iii) The parties hereto agree to provide the Escrow Agent with a certified tax identification number by signing and returning a Form W-9 (or original Form W-8 BEN, in case of non-U.S. persons) to the Escrow Agent, upon the execution and delivery of this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Nuance Communications, Inc.)

Protection of Escrow Fund. (i) Each The Escrow Agent shall hold and safeguard the Escrow Fund during the Escrow Period, shall treat such fund as a trust fund in accordance with the terms of this Agreement and not as the property of Parent and shall hold and dispose of the Stockholders shall have voting rights Escrow Fund only in accordance with respect to the shares terms hereof. For the purpose of Parent Common Stock contributed to and investing funds held in the Escrow Fund on behalf of such Stockholder (and on any voting securities added to Fund, the Escrow Fund Agent may accept written instructions from Shareholder Representative. Shareholder Representative shall indemnify and hold the Escrow Agent harmless from any and all liability for acting on and in respect of accordance with such shares of Parent Common Stock)investment instruction purported to be given by the Shareholder Representative. The Escrow Agent shall from time to time deliver not be responsible for the authenticity of any instructions, or be in any way liable for any unauthorized instruction or for acting on such proxiesan instruction, consents and other materials and documents as may whether or not the person giving the instructions was, in fact, the Shareholder Representative. In no event shall the Escrow Agent be necessary to enable the Stockholders to exercise such voting rights, and shall instruct the Stockholders to return any instructions with respect to such voting rights liable to the Escrow Agentparties for any consequential, who shall tabulate all votes received special, or exemplary damages, including but not limited to lost profits, from any cause whatsoever arising out of, or in any way connected with acting upon written investment instructions that are believed by the Stockholders and shall vote on their behalf in accordance with the instructions given by each such StockholderEscrow Agent to be genuine. In the absence of such instructions, the Escrow Agent shall invest, to the extent reasonably practicable, in the JPMorgan Chase Prime Fund, Reserve Shares. The Escrow Agent may make authorized investments through its own investment department or that of its Affiliates. The Escrow Agent shall not be liable for any loss resulting from such investments, including upon the sale or disposition of any investments. The Escrow Agent will act upon written investment instructions from the Shareholder Representative the day that such instructions are received, provided the requests are communicated within a sufficient amount of time to allow the Escrow Agent to make the specified investment. Instructions received after an applicable investment cutoff deadline will be treated as being received by the Escrow Agent on the next Business Day, and the Escrow Agent shall not be liable for any loss arising directly or indirectly, in whole or in part, from the inability to invest funds on the day the instructions are received. The Escrow Agent shall not be liable for any loss incurred by the actions of third parties or by any such Stockholderloss arising by error, failure, or delay in making an investment which is caused by circumstances beyond the Escrow Agent’s reasonable control. The parties hereto acknowledge that payment of any interest earned on the funds invested in this escrow (which interest shall be available to satisfy any claims of Parent for indemnification but which shall otherwise accrue to the benefit of the Shareholders) will be subject to backup withholding penalties unless a properly completed Internal Revenue Service form W-8 and/or W-9 is provided to the Escrow Agent. Notwithstanding anything to the contrary in this Article 8 or any contrary instructions from the Shareholder Representative, the Escrow Agent shall not vote any invest the Escrow Fund in investments other than the following types of investments: (i) obligations of the shares held on behalf U.S. Government, federal insured bank certificates of such Stockholder. deposit, bonds rated AA or higher by Mxxxx’x or Standard and Poor’s, with maturities of one year or less or (ii) Cash dividendsthe JPMorgan Chase Prime Fund, and any non-cash taxable dividends or distributions, on any shares of Parent Common Stock in the Escrow Fund shall be distributed to the Stockholders according to their Pro Rata Portion, and shall not become a part of the Escrow Fund. Any shares of Parent Common Stock or other equity securities issued or distributed by Parent after the Effective Time in a nontaxable transaction (“New Reserve Shares”) in respect of Parent Common Stock in the Escrow Fund which have not been released from the Escrow Fund shall be added to the Escrow Fund and become a part thereof. The parties hereto (other than the Escrow Agent) agree that the Stockholders are the owners of any stock in the Escrow Fund. New Shares issued in respect of shares of Parent Common Stock which have been released from the Escrow Fund shall not be added to the Escrow Fund but shall be distributed to the record holders thereof. (iii) The parties hereto agree to provide the Escrow Agent with a certified tax identification number by signing and returning a Form W-9 (or original Form W-8 BEN, in case of non-U.S. persons) to the Escrow Agent, upon the execution and delivery of this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Netiq Corp)

Protection of Escrow Fund. (i) Each of the Stockholders The Escrow Agent shall have voting rights with respect to the shares of Parent Common Stock contributed to hold and held in safeguard the Escrow Fund prior to its distribution in full and in accordance with the terms of this Article 8 and shall hold and dispose of the Escrow Fund only in accordance with the term of this Article 8. (ii) During the term of this Agreement, if the Escrow Agent shall have received specific written investment instruction from Parent (which shall include instruction as to term to maturity, if applicable), on behalf of such Stockholder (a timely basis, the Escrow Agent shall invest and on any voting securities added to reinvest, as applicable, the Escrow Fund in respect Eligible Investments, pursuant to and as directed in such instruction. If otherwise qualified, obligations of the Escrow Agent or any of its affiliates shall qualify as Eligible Investments. Notwithstanding the foregoing, Eligible Investments shall be limited to those instruments readily obtainable and routinely offered by the Escrow Agent’s Corporate Trust Services. (iii) Absent its timely receipt of such shares specific written investment instruction from Parent, the Escrow Agent shall have no obligation or duty to invest (or otherwise pay interest on) the Escrow Fund; provided, however, that in the event the Escrow Agent shall not have received such written investment instruction, the Escrow Agent shall be authorized to invest any of Parent Common Stockthe Escrow Fund in MMDA until such investment instruction is received. For the avoidance of doubt, all investment earnings received from the investment of the Escrow Fund shall be credited to, and shall become a part of, the Escrow Fund (and any losses on such investments shall be debited to the Escrow Fund). The Escrow Agent shall from time have no liability for any investment losses, including without limitation any market loss on any investment liquidated prior to time deliver such proxies, consents and other materials and documents maturity in order to make a payment required hereunder. (iv) The parties hereto agree: (A) to treat the Escrow Fund as may be necessary to enable the Stockholders to exercise such voting rights, and shall instruct the Stockholders to return any instructions with respect a “contingent at‑closing escrow” as defined in Proposed Treasury Regulation Section 1.468B‑8(b); (B) that pursuant to such voting rights regulation all items of taxable income or gains prior to the applicable determination date (as defined in Proposed Treasury Regulation Section 1.468B‑8(b)) shall be reported as taxable income or gains of Parent and Parent shall take into account all deductions, credits and losses related to the Escrow AgentFund, who shall tabulate all votes received if any; (C) that, to the extent required by the Stockholders and shall vote on their behalf in accordance with the instructions given by each such Stockholder. In the absence of instructions by any such Stockholderapplicable Legal Requirements, the Escrow Agent shall issue an IRS Form 1099 (or any successor form) relating to such taxable income or gains to and in the name of Parent for periods prior to the applicable determination date (as defined in Proposed Treasury Regulation Section 1.468B‑8), and an IRS Form 1099 shall be issued by the Escrow Agent to the Indemnifying Parties for all of such income or gains not vote any so allocated to Parent; (D) that Parent and the Securityholder Representative shall promptly deliver such certificates and other documents as the Escrow Agent may reasonably request in connection with the foregoing, including, without limitation, completed, executed Forms W‑9 (or the appropriate Forms W‑8, in the case of non‑U.S. persons); and (E) that in order to permit Parent to satisfy its tax obligations with respect to items of taxable income or gains hereunder, by February 15 of the shares held on behalf of such Stockholder. (ii) Cash dividendsyear immediately succeeding each calendar year, and any non-cash taxable dividends or distributions, on any shares immediately upon final distribution of Parent Common Stock the amounts in the Escrow Fund Fund, with respect to which items of taxable income or gains are to be reported as taxable income or gains of Parent, the Escrow Agent shall be distributed deliver to the Stockholders according Parent an amount equal to their Pro Rata Portion, and shall not become a part 40% of the Escrow Fundamount of such taxable income or gains. Any shares of Parent Common Stock or other equity securities issued or distributed by Parent after the Effective Time in a nontaxable transaction (“New Shares”) in respect of Parent Common Stock in the Escrow Fund which have not been released The parties hereto agree that, for tax reporting purposes, any distribution from the Escrow Fund to the Indemnifying Parties shall be added reportable on IRS Form 1099B for the tax year in which the distribution is made. Notwithstanding the foregoing, distributions made to the Escrow Fund Company on behalf of the Company Optionholders or Company Warrantholders shall be treated as returned to the Company and become a part thereof. The parties hereto (other than shall not be reported by the Escrow Agent) agree that the Stockholders are the owners of any stock in the Escrow Fund. New Shares issued in respect of shares of Parent Common Stock which have been released from the Escrow Fund shall not be added to the Escrow Fund but shall be distributed to the record holders thereof. (iiiv) The Each of the parties hereto agree agrees to provide provide, and the Securityholder Representative agrees to direct the Indemnifying Parties to provide, the Escrow Agent with a certified tax identification number by signing and returning a Form W-9 W‑9 (or original the appropriate Form W-8 BENW‑8, in case of non-U.S. non‑U.S. persons) to the Escrow Agent, Agent upon the execution and delivery of this Agreement. The parties hereto understand that, in the event their tax identification numbers are not certified to the Escrow Agent, the Code may require withholding of a portion of any interest or other income earned on the investment of the Escrow Fund. Each of the parties hereto agrees to instruct the Escrow Agent in writing with respect to the Escrow Agent’s responsibility for withholding and other taxes, assessments or other governmental charges.

Appears in 1 contract

Samples: Merger Agreement (Tivo Inc)

Protection of Escrow Fund. (i) Each The Escrow Agent shall hold and ------------------------- safeguard the Escrow Fund during the Escrow Period, shall treat such fund as a trust fund in accordance with the terms of this Agreement and shall hold and dispose of the Stockholders shall have voting rights Escrow Fund only in accordance with respect to the shares of Parent Common Stock contributed to and held terms hereof. All income earned on the cash in the Escrow Fund on behalf Fund, if any, shall become part of, and be held as an additional portion of such Stockholder (and on any voting securities added to the Escrow Fund in proportion to each applicable stockholder's Pro Rata Escrow Basis, subject to the tax distribution authorized below. It is expressly agreed and understood that the Escrow Fund shall, until distributed pursuant to the terms of this Agreement or the Escrow Agreement, constitute assets of the Parent for tax purposes, provided, however, that the Escrow Agent shall not distribute any amounts from the Escrow Fund except as expressly provided in this Agreement or the Escrow Agreement or pursuant to any final and nonappealable order of a court of competent jurisdiction with respect to payment. Accordingly, for tax purposes, the assets and all earnings on the assets shall be considered owned by the Parent until distributed pursuant to the terms of this Agreement or the Escrow Agreement, and reported as such shares of for all tax reporting purposes. Interest shall accrue on Parent's obligation to Company stockholders under the Escrow Fund arrangement at a rate equal to the rate at which interest is earned on the amounts in escrow. Parent Common Stockwill report such accrued interest to the Company stockholders as required by income tax reporting rules (including the original issue discount rules). The Escrow Agent shall from time is hereby directed to time deliver such proxies, consents and other materials and documents as may be necessary to enable the Stockholders to exercise such voting rights, and shall instruct the Stockholders to return any instructions with respect to such voting rights pay to the Escrow Agent, who shall tabulate all votes received by the Stockholders and shall vote on their behalf in accordance with the instructions given by each such Stockholder. In the absence of instructions by any such Stockholder, the Escrow Agent shall not vote any of the shares held on behalf of such Stockholder. (ii) Cash dividends, and any non-cash taxable dividends or distributions, on any shares of Parent Common Stock in the Escrow Fund shall be distributed to the Stockholders according to their Pro Rata Portion, and shall not become a part Company stockholders out of the Escrow Fund, as soon as reasonably practicable following the reporting of such accrued interest to such Company stockholders, a tax distribution equal to 40% of the amounts reported to Company stockholders. Any shares of Parent Common Stock or other equity securities issued or distributed by Parent Within 30 days after the Effective Time in Closing Date, the Stockholder Representative shall deliver to Parent a nontaxable transaction (“New Shares”) in respect of Parent Common Stock in the Escrow Fund which have not been released from the Escrow Fund shall be added to the Escrow Fund properly executed, valid IRS Form W-8 or W-9 and become a part thereof. The parties hereto (such other than the Escrow Agent) agree tax reporting documents that the Stockholders are the owners of any stock in the Escrow Fund. New Shares issued in respect of shares of Parent Common Stock which have been released from the Escrow Fund shall not be added to the Escrow Fund but shall be distributed to the record holders thereofmay reasonably request, for each Company stockholder. (iii) The parties hereto agree to provide the Escrow Agent with a certified tax identification number by signing and returning a Form W-9 (or original Form W-8 BEN, in case of non-U.S. persons) to the Escrow Agent, upon the execution and delivery of this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Autodesk Inc)

Protection of Escrow Fund. (i) Each The Escrow Agent shall hold and safeguard the Escrow Fund during the Escrow Period and shall hold and dispose of the Stockholders Escrow Fund only in accordance with the terms of this Section 7.4(c). (ii) Any opinion of counsel required to be delivered pursuant to any restrictive legend appearing on the certificate evidencing the Parent Common Stock in connection with any distribution of Parent Common Stock to be made by the Escrow Agent under or pursuant to this Agreement shall have voting include the Escrow Agent as an addressee or shall expressly consent to the Escrow Agent’s reliance thereon, provided, however, that if Parent shall so request such an opinion of counsel, Parent shall bear the cost of providing such opinion of counsel. (iii) The parties hereto agree to provide the Escrow Agent with a certified tax identification number by signing and returning a Form W-9 to the Escrow Agent, upon the execution and delivery of this Agreement. (iv) Neither the Escrow Agent nor its nominee shall be under any duty to take any action to preserve, protect, exercise or enforce any rights or remedies under or with respect to the shares of Parent Common Stock contributed (including without limitation with respect to the exercise of any voting or consent rights, conversion or exchange rights, defense of title, preservation of rights against prior matters or otherwise). Notwithstanding the foregoing, if the Escrow Agent is so requested in a written request of the Stockholders’ Representative received by the Escrow Agent at least three (3) Business Days prior to the date on which the Escrow Agent is requested therein to take such action (or such later date as may be acceptable to the Escrow Agent), the Escrow Agent shall execute or cause its nominee to execute, and deliver to the Stockholders’ Representative a proxy or other instrument in the form supplied to it by the Stockholders’ Representative for voting or otherwise exercising any right of consent with respect to any of the Parent Common Stock held by it hereunder, to authorize therein the Stockholder’s Representative to exercise such voting or consent authority in respect of the Escrow Fund on behalf of such Stockholder (and on any voting securities added to provided that the Escrow Fund Agent shall not be obliged to execute any such proxy or other instrument if, in respect of such shares of Parent Common Stockits judgment, the terms thereof may subject the Escrow Agent to any liabilities or obligations in its individual capacity). The Escrow Agent shall not be under any duty or responsibility to forward to any of the parties hereto, or to notify any such parties with respect to, or to take any action with respect to, any notice, solicitation or other document or information, written or otherwise, received from time to time deliver such proxies, consents and an issuer or other materials and documents as may be necessary to enable the Stockholders to exercise such voting rights, and shall instruct the Stockholders to return any instructions person with respect to such voting rights to the Escrow AgentShares, who shall tabulate all votes received by the Stockholders and shall vote on their behalf in accordance with the instructions given by each such Stockholder. In the absence of instructions by any such Stockholderincluding but not limited to, proxy material, tenders, options, the Escrow Agent shall not vote any pendency of the shares held on behalf calls and maturities and expiration of such Stockholderrights. (iiv) Cash dividends, and any non-cash taxable dividends or distributions, on any shares of Parent Common Stock in the Escrow Fund shall be distributed to the Stockholders according to their Pro Rata Portion, and shall not become a part of the Escrow Fund. Any shares of Parent Common Stock or other equity securities issued or distributed by Parent after the Effective Time in a nontaxable transaction (“New Shares”) in respect of Parent Common Stock in the Escrow Fund which have not been released from the Escrow Fund shall be added to the Escrow Fund and become a part thereof. The parties hereto (other than the Escrow Agent) agree that the Stockholders are the owners of any stock in the Escrow Fund. New Shares issued in respect of shares of Parent Common Stock which have been released from the Escrow Fund shall not be added to the Escrow Fund but shall be distributed to the record holders thereof. (iii) The parties hereto agree to provide the Escrow Agent with a certified tax identification number by signing and returning a Form W-9 (or original Form W-8 BEN, in case of non-U.S. persons) to the Escrow Agent, upon the execution and delivery of this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Nuance Communications, Inc.)

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Protection of Escrow Fund. (ia) The Escrow Agent shall hold and safeguard the Escrow Fund during the Escrow Period and shall hold and dispose of the Escrow Fund only in accordance with the terms and conditions of the Escrow Agreement. (b) Each of the Stockholders Traq stockholders shall have voting rights with respect to the shares of Parent Common Tangoe Capital Stock contributed to and held in the Escrow Fund on behalf of such Stockholder stockholder (and on any voting securities added to the Escrow Fund in respect of such shares of Parent Common Tangoe Capital Stock). The Escrow Agent shall from time to time deliver such proxies, consents and other materials and documents as may be necessary to enable the Stockholders Traq stockholders to exercise such voting rights, and shall instruct the Stockholders stockholders to return any instructions with respect to such voting rights to the Escrow Agent, who shall tabulate all votes received by the Stockholders stockholders and shall vote on their behalf in accordance with the instructions given by each such Stockholderstockholder. In the absence of instructions by any such StockholderTraq stockholder, the Escrow Agent shall not vote any of the shares held on behalf of such Stockholderstockholder. (iic) Cash dividends, and any non-cash taxable dividends or distributions (other than New Shares as defined below, and other than liquidating distributions), on any shares of Parent Common Tangoe Capital Stock in the Escrow Fund shall be distributed to the Stockholders Traq stockholders according to their Pro Rata Portionon a pro rata basis, and shall not become a part of the Escrow Fund. Any shares of Parent Common Tangoe Capital Stock or other equity securities securities, property or moneys issued or distributed by Parent Tangoe after the Effective Time in (including shares issued upon a nontaxable transaction stock split) (“New Shares”) in respect of Parent Common Tangoe Capital Stock in the Escrow Fund which that have not been released from the Escrow Fund shall be added to the Escrow Fund and become a part thereof. The parties hereto (other than the Escrow Agent) agree that the Stockholders are the owners of any stock in the Escrow Fund. New Shares issued in respect of shares of Parent Common Tangoe Capital Stock which that have been released from the Escrow Fund shall not be added to the Escrow Fund but shall be distributed to the record holders thereof. (iii) The parties hereto agree to provide the Escrow Agent with a certified tax identification number by signing and returning a Form W-9 (or original Form W-8 BEN, in case of non-U.S. persons) to the Escrow Agent, upon the execution and delivery of this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Tangoe Inc)

Protection of Escrow Fund. (i) Each The Escrow Agent shall hold and safeguard the Escrow Fund during the Escrow Period, shall treat such fund as a trust fund in accordance with the terms of this Agreement and shall hold and dispose of the Stockholders Escrow Fund only in accordance with the terms hereof. All income earned on the cash in the Escrow Fund, if any, shall have voting rights with respect become part of, and be held as an additional portion of the Escrow Fund in proportion to each Participating Holder’s original share of the shares Escrow Fund. The parties hereto agree that for tax reporting purposes, Parent is the owner of Parent Common Stock contributed to and held any cash in the Escrow Fund on behalf of until such Stockholder (and on any voting securities added to the Escrow Fund in respect of such shares of Parent Common Stock). The Escrow Agent shall from time to time deliver such proxies, consents and other materials and documents as may be necessary to enable the Stockholders to exercise such voting rights, and shall instruct the Stockholders to return any instructions with respect to such voting rights to the Escrow Agent, who shall tabulate all votes received by the Stockholders and shall vote on their behalf cash is distributed in accordance with this Agreement, and that all interest on or other taxable income, if any, earned from the instructions given by each such Stockholder. In the absence of instructions by any such Stockholder, the Escrow Agent shall not vote any of the shares held on behalf investment of such Stockholder. (ii) Cash dividendscash shall be treated for tax purposes as earned by Parent. At the end of Parent’s taxable year, and any non-an amount equal to the income earned from the investment of cash taxable dividends or distributions, on any shares of Parent Common Stock contained in the Escrow Fund shall be distributed deemed paid to the Stockholders according to their Participating Holders, based on each Participating Holder’s Pro Rata PortionShare, and shall not become a part of then recontributed by such Participating Holders to the Escrow Fund. Any shares The deemed payment represents interest for the deferral of Parent Common Stock or other equity securities issued or distributed by Parent after payment of a portion of the Effective Time in a nontaxable transaction Merger Consideration resulting from the escrow arrangement. The Participating Holders shall be responsible for any Taxes due with respect to the deemed payment. (“New Shares”ii) in respect of Parent Common Stock in The Escrow Agent shall invest and reinvest the Escrow Fund which have not been released at the joint written instructions of Parent and the Stockholder Representative. In the absence of joint written directions from Parent and the Stockholder Representative, the Escrow Fund shall be added to the Escrow Fund and become invested in a part thereofU.S. Bank Money Market account. The parties hereto (other than the Escrow Agent) agree joint written instructions shall specify that the Stockholders are the owners of any stock in the Escrow Fund. New Shares issued in respect of shares of Parent Common Stock which have been released from the Escrow Fund shall not be added to invested in any one or combination of the Escrow Fund but shall be distributed to following: (a) readily marketable direct obligations of the record holders thereof. government of the United States or any agency or instrumentality thereof or readily marketable obligations unconditionally guaranteed by the full faith and credit of the government of the United States, (iiib) The parties hereto agree to provide insured certificates of deposit, of or time deposits with, any commercial bank that issues commercial paper (rated as described in clause (c) below), is organized under the Escrow Agent with a certified tax identification number laws of the United States or any state thereof and has combined capital and surplus of at least $1 billion, (c) commercial paper issued by signing and returning a Form W-9 any corporation organized under the laws of any state of the United States, rated at least “Prime-1” (or original Form W-8 BENthen equivalent grade) by Xxxxx’x Investors Services, Inc. or “A-1” (or then equivalent grade) by Standard & Poors, Inc., or (d) money market funds that invest solely in case direct obligations of non-U.S. persons) to the Escrow Agent, upon government of the execution and delivery of this AgreementUnited States.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Entrust Inc)

Protection of Escrow Fund. (i) Each of the Stockholders shall have voting rights with respect to the shares of Parent Common Stock contributed to and held in the Escrow Fund on behalf of such Stockholder (and on any voting securities added to the Escrow Fund in respect of such shares of Parent Common Stock). The Escrow Agent shall from time to time deliver such proxies, consents hold and other materials and documents as may be necessary to enable the Stockholders to exercise such voting rights, and shall instruct the Stockholders to return any instructions with respect to such voting rights to safeguard the Escrow AgentFund during the Escrow Period, who shall tabulate all votes received by the Stockholders and shall vote on their behalf treat such fund as a trust fund in accordance with the instructions given by each such Stockholder. In the absence terms of instructions by any such Stockholder, this Agreement and shall hold and dispose of the Escrow Agent shall not vote any Fund only in accordance with the terms of the shares held on behalf of such Stockholderthis Article VIII. (ii) Cash dividendsAt the written direction of Parent, and any non-cash taxable dividends or distributions, on any shares of Parent Common Stock in the Total Escrow Fund Amount shall be distributed to the Stockholders according to their Pro Rata Portioninvested in (A) U.S. Treasury bills with maturities of not more than thirty (30) days, and shall not become or (B) a part money market fund of the Escrow Fund. Any shares of Parent Common Stock Agent (or other equity securities issued or distributed by Parent after the Effective Time another nationally recognized banking institution) and any interest paid on such Total Escrow Amount shall be segregated in a nontaxable transaction (“New Shares”) in respect of Parent Common Stock in the Escrow Fund which have not been released from the Escrow Fund shall be added to the Escrow Fund separate account and become a part thereof. The parties hereto (other than the Escrow Agent) agree that the Stockholders are the owners of any stock in the Escrow Fund. New Shares issued in respect of shares of Parent Common Stock which have been released from the Escrow Fund shall not be added to the Escrow Fund but shall be distributed to Fund. In the record holders thereof. (iii) The parties hereto agree to provide absence of any written investment direction, the Escrow Agent with shall invest the Total Escrow Amount in a certified tax identification number by signing and returning a Form W-9 (or original Form W-8 BEN, in case of non-U.S. persons) to Bank Money Market Account. All income earned on the Escrow AgentAmount shall be belong to Parent, upon and shall be transferred to a bank account of Parent’s written designation within ten (10) Business Days of the execution end of each calendar quarter following the Effective Time. Within ten (10) Business Days of the Escrow Distribution Date, any income earned on the Escrow Amount not yet transferred to Parent will be transferred to a bank account designated in writing by Parent, as will any income earned with respect to Unresolved Claims. The Escrow Agent and delivery of this Agreementthe Indemnifying Parties shall not be responsible for any investment losses incurred on the Total Escrow Amount. FOIA confidential treatment requested: [***] indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to such omitted portions.

Appears in 1 contract

Samples: Merger Agreement (Spreadtrum Communications Inc)

Protection of Escrow Fund. (i) The Escrow Agent shall hold and safeguard the Escrow Fund during the Escrow Period and shall hold and dispose of the Escrow Fund only in accordance with the terms of this SECTION 7.3(c). (ii) Each of the Stockholders shall have voting rights with respect to the shares of Parent Common Stock contributed to and held in the Escrow Fund on behalf of such Stockholder (and on any voting securities added to the Escrow Fund in respect of such shares of Parent Common Stock). The Escrow Agent shall from time to time deliver such proxies, consents and other materials and documents as may be necessary to enable the Stockholders to exercise such voting rights, and shall instruct the Stockholders to return any instructions with respect to such voting rights to the Escrow Agent, who shall tabulate all votes received by the Stockholders and shall vote on their behalf in accordance with the instructions given by each such Stockholder. In the absence of instructions by any such Stockholder, the Escrow Agent shall not vote any of the shares held on behalf of such Stockholder. (iiiii) The Stockholder Representative and the Stockholders agree that the Stockholders shall be solely responsible for providing, at their cost and expense, any certification, opinion of counsel or other instrument or document necessary to comply with or satisfy any transfer restrictions to which the Parent Common Stock is subject, including without limitation any opinion of counsel required to be delivered pursuant to any restrictive legend appearing on the certificate evidencing the Parent Common Stock in connection with any distribution of Parent Common Stock to be made by the Escrow Agent under or pursuant to this Agreement. Any such opinion of counsel shall include the Escrow Agent as an addressee or shall expressly consent to the Escrow Agent's reliance thereon. (iv) Cash dividends, and any non-cash taxable dividends or distributionsdistributions (other than New Shares as defined below), on any shares of Parent Common Stock in the Escrow Fund shall be distributed to the Stockholders according to their Pro Rata Portion, and shall not become a part of the Escrow Fund. Any shares of Parent Common Stock or other equity securities issued or distributed by Parent after the Effective Time in (including shares issued upon a nontaxable transaction stock split) (“New Shares”"NEW SHARES") in respect of Parent Common Stock in the Escrow Fund which have not been released from the Escrow Fund shall be added to the Escrow Fund and become a part thereof. The parties hereto (other than the Escrow Agent) agree that the Stockholders are the owners of any stock in the Escrow Fund. New Shares issued in respect of shares of Parent Common Stock which have been released from the Escrow Fund shall not be added to the Escrow Fund but shall be distributed to the record holders thereof. (iii) The parties hereto agree to provide the Escrow Agent with a certified tax identification number by signing and returning a Form W-9 (or original Form W-8 BEN, in case of non-U.S. persons) to the Escrow Agent, upon the execution and delivery of this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Nuance Communications, Inc.)

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