Common use of Protection of Escrow Fund Clause in Contracts

Protection of Escrow Fund. (i) 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 Escrow Fund only in accordance with the terms hereof. All income earned on the cash in the Escrow Fund, if any, shall become part of, and be held as an additional portion of the Escrow Fund in proportion to each Pathlore Stockholder’s original share of the Escrow Fund. The parties hereto agree that the Pathlore Stockholders, based on each Pathlore Stockholder’s Proportionate Interest, shall be the owners of any cash contained in the Escrow Fund, and that all interest on or other taxable income, if any, earned from the investment of cash contained in the Escrow Fund shall be treated for Tax purposes as earned by such Pathlore Stockholder. At the end of each calendar year, an amount equal to the income earned from the investment of cash contained in the Escrow Fund for the preceding taxable year (or portion thereof) shall be distributed to the Pathlore Stockholders in proportion to each applicable stockholder’s Proportionate Interest. (ii) Any shares of SumTotal Common Stock or other equity securities issued or distributed by SumTotal (including shares issued upon a stock split) (“New Shares”) in respect of shares of SumTotal Common Stock in the Escrow Fund which have not been released from the Escrow Fund as of the time of such issuance or distribution by SumTotal shall be added to the Escrow Fund and become a part thereof. Cash dividends on SumTotal Common Stock and New Shares issued in respect of shares of SumTotal Common Stock which have been released from the Escrow Fund as of the time of such issuance or distribution by SumTotal shall not be added to the Escrow Fund but shall be distributed to the Pathlore Stockholders in proportion to their Proportionate Interest in the Escrow Fund. (iii) Each Pathlore Stockholder shall be entitled to control the vote of such stockholder’s Proportionate Interest in the shares of SumTotal Common Stock held in the Escrow Fund (and on any voting securities added to the Escrow Fund in respect of such shares of SumTotal Common Stock), and the Escrow Agent in whose name the shares are held shall vote such shares on all matters as instructed by the respective stockholders in writing. (iv) So long as the closing sales price for one share of SumTotal Common Stock as reported on the Nasdaq National Market on the day before any sale under this Section 7.3(c)(iv) is equal to or greater than the SumTotal Stock Price, the Stockholder Representative, on behalf of the Pathlore Stockholders, may from time to time direct the Escrow Agent to sell Escrow Shares for cash, and the proceeds (net of ordinary and reasonable commissions) of any such sale shall be added to the Escrow Fund and be available for recovery under Section 7.2. In connection with any sale of Escrow Shares pursuant to this Section 7.3(c)(iv), the Escrow Agent shall be entitled to receive and rely upon written direction from the Stockholder Representative as to the manner and method to carry out such sale, including without limitation (i) identifying the number of shares to be sold, (ii) identifying the brokerage firm the Stockholder Representative requests to be used or instructing the Escrow Agent to use its affiliated brokerage service, and (iii) setting forth any necessary or special instructions with respect to the sale (including any stop loss or minimum price per share instructions). (v) The Escrow Agent shall invest and reinvest the Escrow Fund at the joint written instructions of SumTotal and the Stockholder Representative. In the absence of joint written directions from SumTotal and the Stockholder Representative, the Escrow Fund shall be invested in a U.S. Bank Money Market account. The joint written instructions shall specify that the Escrow Fund shall be invested in any one or combination of the following: (a) readily marketable direct obligations of the 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, (b) 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 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 any corporation organized under the laws of any State of the United States, rated at least “Prime-1” (or then 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 direct obligations of the U.S. government.

Protection of Escrow Fund. (i) 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 Escrow Fund only in accordance with the terms hereof. All income earned on the cash in the Escrow Fund, if any, shall become part of, and be held as an additional portion of the Escrow Fund in proportion to each Pathlore Company Stockholder’s 's original share of contribution to the Escrow Fund. The parties hereto agree that For tax reporting and withholding purposes, all income earned on the Pathlore Stockholders, based on each Pathlore Stockholder’s Proportionate Interest, shall be the owners of any cash contained in the Escrow Fund, and that all interest on or other taxable income, if any, earned from the investment of cash contained in the Escrow Fund shall be treated for Tax purposes as income earned by such Pathlore Stockholder. At the end Parent and as payments of each calendar year, an amount equal interest by Parent to the income earned from the investment of cash contained in the Escrow Fund for the preceding taxable year (or portion thereof) shall be distributed to the Pathlore applicable Company Stockholders in proportion to each applicable stockholder’s Proportionate Interest's Pro Rata Portion, and shall be reported by the Escrow Agent as income to such applicable stockholders. (ii) Any shares of SumTotal Parent Common Stock or other equity securities issued or distributed by SumTotal Parent (including shares issued upon a stock split) (“New Shares”"NEW SHARES") in respect of shares of SumTotal Parent Common Stock in the Escrow Fund which have not been released from the Escrow Fund as of the time of such issuance or distribution by SumTotal Parent shall be added to the Escrow Fund and become a part thereof. Cash dividends on SumTotal Parent Common Stock and New Shares issued in respect of shares of SumTotal Parent Common Stock which have been released from the Escrow Fund as of the time of such issuance or distribution by SumTotal Parent shall not be added to the Escrow Fund but shall be distributed to the Pathlore Company Stockholders in proportion to their Proportionate Interest respective original contribution to the Escrow Fund. All income earned on the cash in the Escrow Fund shall be distributed to the Company Stockholders to whose account the income has been credited not later than the earlier of January 31 of the year following the calendar year in which earned or the date of the last distribution to either the Company Stockholders or Parent of the cash in the Escrow Fund. (iii) Each Pathlore Company Stockholder shall be entitled to control the vote of such stockholder’s Proportionate Interest in the shares of SumTotal Parent Common Stock held in contributed to the Escrow Fund by such Company Stockholder (and on any voting securities added to the Escrow Fund in respect of such shares of SumTotal Parent Common Stock), and the Escrow Agent in whose name the shares are held shall vote such shares on all matters as instructed by the respective stockholders in writing. (iv) So long as the closing sales price for one share of SumTotal Common Stock as reported on the Nasdaq National Market on the day before any sale under this Section 7.3(c)(iv) is equal to or greater than the SumTotal Stock Price, the Stockholder Representative, on behalf of the Pathlore Stockholders, may from time to time direct the Escrow Agent to sell Escrow Shares for cash, and the proceeds (net of ordinary and reasonable commissions) of any such sale shall be added to the Escrow Fund and be available for recovery under Section 7.2. In connection with any sale of Escrow Shares pursuant to this Section 7.3(c)(iv), the Escrow Agent shall be entitled to receive and rely upon written direction from the Stockholder Representative as to the manner and method to carry out such sale, including without limitation (i) identifying the number of shares to be sold, (ii) identifying the brokerage firm the Stockholder Representative requests to be used or instructing the Escrow Agent to use its affiliated brokerage service, and (iii) setting forth any necessary or special instructions with respect to the sale (including any stop loss or minimum price per share instructions). (v) The Escrow Agent shall invest and reinvest the Escrow Fund at the joint written instructions of SumTotal and the Stockholder Representative. In the absence of joint written directions from SumTotal and the Stockholder Representative, the Escrow Fund shall be invested in a U.S. Bank Money Market account. The joint written instructions shall specify that the Escrow Fund shall be invested in any one or combination of the following: (a) readily marketable direct obligations of the 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, (b) 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 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 any corporation organized under the laws of any State of the United States, rated at least “Prime-1” (or then 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 direct obligations of the U.S. government.

Protection of Escrow Fund. (i) 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 Period and shall hold and dispose of the Escrow Fund only in accordance with the terms hereof. All income earned on the cash in the Escrow Fund, if any, shall become part of, and be held as an additional portion of the Escrow Fund in proportion to each Pathlore Stockholder’s original share of the Escrow Fund. The parties hereto agree that the Pathlore Stockholders, based on each Pathlore Stockholder’s Proportionate Interest, shall be the owners of any cash contained in the Escrow Fund, and that all interest on or other taxable income, if any, earned from the investment of cash contained in the Escrow Fund shall be treated for Tax purposes as earned by such Pathlore Stockholder. At the end of each calendar year, an amount equal to the income earned from the investment of cash contained in the Escrow Fund for the preceding taxable year (or portion thereof) shall be distributed to the Pathlore Stockholders in proportion to each applicable stockholder’s Proportionate Interestthis Section 7.3(c). (ii) Any shares of SumTotal Common Stock or other equity securities issued or distributed by SumTotal (including shares issued upon a stock split) (“New Shares”) in respect of shares of SumTotal Common Stock in the Escrow Fund which have not been released from the Escrow Fund as Each of the time of such issuance or distribution by SumTotal Stockholders shall be added have voting rights with respect to the Escrow Fund and become a part thereof. Cash dividends on SumTotal Common Stock and New Shares issued in respect of shares of SumTotal Common Stock which have been released from the Escrow Fund as of the time of such issuance or distribution by SumTotal shall not be added to the Escrow Fund but shall be distributed to the Pathlore Stockholders in proportion to their Proportionate Interest in the Escrow Fund. (iii) Each Pathlore Stockholder shall be entitled to control the vote of such stockholder’s Proportionate Interest in the shares of SumTotal 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 SumTotal Parent Common Stock). The Escrow Agent shall from time to time deliver such proxies, consents and other materials and documents to the Stockholder Representative as may be necessary to enable the Stockholders to exercise such voting rights, and the Stockholder Representative shall instruct the Stockholders to return any instructions with respect to such voting rights to the Stockholder Representative, 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 Stockholder Representative shall not vote any of the shares held on behalf of such Stockholder. (iii) 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 in whose name under or pursuant to this Agreement. Any such opinion of counsel shall include the shares are held Escrow Agent as an addressee or shall vote such shares on all matters as instructed by expressly consent to the respective stockholders in writingEscrow Agent’s reliance thereon. (iv) So long Cash dividends, and any non-cash taxable dividends or distributions (other than New Shares as the closing sales price for one share defined below), on any shares of SumTotal Parent Common Stock as reported on in the Nasdaq National Market on Escrow Fund shall be distributed to the day before any sale under this Section 7.3(c)(iv) is equal Stockholders according to or greater than the SumTotal Stock Pricetheir Pro Rata Portion, the Stockholder Representative, on behalf and shall not become a part of the Pathlore Stockholders, may from time to time direct Escrow Fund. Any shares of Parent Common Stock or other equity securities issued or distributed by Parent after the Effective Time (including shares issued upon a nontaxable stock split) (“New Shares”) in respect of Parent Common Stock in the Escrow Agent to sell Fund which have not been released from the Escrow Shares for cash, and the proceeds (net of ordinary and reasonable commissions) of any such sale Fund shall be added to the Escrow Fund and be available for recovery under Section 7.2become a part thereof. In connection with any sale of Escrow Shares pursuant to this Section 7.3(c)(iv), The parties hereto (other than the Escrow Agent 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 entitled to receive and rely upon written direction from the Stockholder Representative as distributed to the manner and method to carry out such sale, including without limitation (i) identifying the number of shares to be sold, (ii) identifying the brokerage firm the Stockholder Representative requests to be used or instructing the Escrow Agent to use its affiliated brokerage service, and (iii) setting forth any necessary or special instructions with respect to the sale (including any stop loss or minimum price per share instructions)record holders thereof. (v) The parties hereto agree to provide the Escrow Agent shall invest with a certified tax identification number by signing and reinvest returning a Form W-9 (or Form W-8 BEN, in case of non-U.S. persons) to the Escrow Fund at Agent, upon the joint written instructions execution and delivery of SumTotal and the Stockholder Representative. In the absence of joint written directions from SumTotal and the Stockholder Representative, the Escrow Fund shall be invested in a U.S. Bank Money Market account. The joint written instructions shall specify that the Escrow Fund shall be invested in any one or combination of the following: (a) readily marketable direct obligations of the 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, (b) 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 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 any corporation organized under the laws of any State of the United States, rated at least “Prime-1” (or then 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 direct obligations of the U.S. governmentthis Agreement.

Protection of Escrow Fund. (i) 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 Escrow Fund only in accordance with the terms hereof. All Any income earned on the cash Merger Cash in the Escrow Fund, if any, shall become part of, and be held as an additional portion of the Escrow Fund in proportion to each Pathlore Company Stockholder’s 's original share contribution of Merger Cash to the Escrow Fund. The parties hereto agree that For tax reporting and withholding purposes, any income earned on the Pathlore Stockholders, based on each Pathlore Stockholder’s Proportionate Interest, shall be the owners of any cash contained in the Escrow Fund, and that all interest on or other taxable income, if any, earned from the investment of cash contained Merger Cash in the Escrow Fund shall be treated for Tax purposes as income earned by such Pathlore Stockholder. At the end Parent and as payments of each calendar year, an amount equal interest by Parent to the income earned from the investment of cash contained in the Escrow Fund for the preceding taxable year (or portion thereof) shall be distributed to the Pathlore applicable Company Stockholders in proportion to each Company Stockholder's original contribution of Merger Cash to the Escrow Fund, and shall be reported by the Escrow Agent as income to such applicable stockholder’s Proportionate Intereststockholders. (ii) Any shares of SumTotal Parent Common Stock or other equity securities issued or distributed by SumTotal Parent (including shares issued upon a stock split) (“New Shares”"NEW SHARES") in respect of shares of SumTotal Parent Common Stock in the Escrow Fund which have not been released from the Escrow Fund as of the time of such issuance or distribution by SumTotal Parent shall be added to the Escrow Fund and become a part thereof. Cash dividends on SumTotal Parent Common Stock and New Shares issued in respect of shares of SumTotal Parent Common Stock which have been released from the Escrow Fund as of the time of such issuance or distribution by SumTotal Parent shall not be added to the Escrow Fund but shall be distributed to the Pathlore Company Stockholders in proportion to their Proportionate Interest in respective original contribution to the Escrow Fund. (iii) Each Pathlore Company Stockholder shall be entitled to control the vote of such stockholder’s Proportionate Interest in the shares of SumTotal Parent Common Stock held in contributed to the Escrow Fund by such Company Stockholder (and on any voting securities added to the Escrow Fund in respect of such shares of SumTotal Parent Common Stock), and the Escrow Agent in whose name the shares are held shall vote such shares on all matters as instructed by the respective stockholders in writing. (iv) So long as the closing sales price for one share of SumTotal Common Stock as reported on the Nasdaq National Market on the day before any sale under this Section 7.3(c)(iv) is equal to or greater than the SumTotal Stock Price, the Stockholder Representative, on behalf of the Pathlore Stockholders, may from time to time direct the Escrow Agent to sell Escrow Shares for cash, and the proceeds (net of ordinary and reasonable commissions) of any such sale shall be added to the Escrow Fund and be available for recovery under Section 7.2. In connection with any sale of Escrow Shares pursuant to this Section 7.3(c)(iv), the Escrow Agent shall be entitled to receive and rely upon written direction from the Stockholder Representative as to the manner and method to carry out such sale, including without limitation (i) identifying the number of shares to be sold, (ii) identifying the brokerage firm the Stockholder Representative requests to be used or instructing the Escrow Agent to use its affiliated brokerage service, and (iii) setting forth any necessary or special instructions with respect to the sale (including any stop loss or minimum price per share instructions). (v) The Escrow Agent shall invest and reinvest the Escrow Fund at the joint written instructions of SumTotal and the Stockholder Representative. In the absence of joint written directions from SumTotal and the Stockholder Representative, the Escrow Fund shall be invested in a U.S. Bank Money Market account. The joint written instructions shall specify that the Escrow Fund shall be invested in any one or combination of the following: (a) readily marketable direct obligations of the 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, (b) 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 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 any corporation organized under the laws of any State of the United States, rated at least “Prime-1” (or then 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 direct obligations of the U.S. government.

Protection of Escrow Fund. (i) 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 Each of the Escrow Fund only in accordance Scheme Shareholders shall have voting rights with the terms hereof. All income earned on the cash in the Escrow Fund, if any, shall become part of, and be held as an additional portion of the Escrow Fund in proportion respect to each Pathlore Stockholder’s original share of the Escrow Fund. The parties hereto agree that the Pathlore Stockholders, based on each Pathlore Stockholder’s Proportionate Interest, shall be the owners of any cash contained in the Escrow Fund, and that all interest on or other taxable income, if any, earned from the investment of cash contained in the Escrow Fund shall be treated for Tax purposes as earned by such Pathlore Stockholder. At the end of each calendar year, an amount equal to the income earned from the investment of cash contained in the Escrow Fund for the preceding taxable year (or portion thereof) shall be distributed to the Pathlore Stockholders in proportion to each applicable stockholder’s Proportionate Interest. (ii) Any shares of SumTotal Common Stock or other equity securities issued or distributed by SumTotal (including shares issued upon a stock split) (“New Shares”) in respect of shares of SumTotal Common Stock in the Escrow Fund which have not been released from the Escrow Fund as of the time of such issuance or distribution by SumTotal shall be added to the Escrow Fund and become a part thereof. Cash dividends on SumTotal Common Stock and New Shares issued in respect of shares of SumTotal Common Stock which have been released from the Escrow Fund as of the time of such issuance or distribution by SumTotal shall not be added to the Escrow Fund but shall be distributed to the Pathlore Stockholders in proportion to their Proportionate Interest in the Escrow Fund. (iii) Each Pathlore Stockholder shall be entitled to control the vote of such stockholder’s Proportionate Interest in the shares of SumTotal Purchaser Common Stock contributed to and held in the Escrow Fund on behalf of such Scheme Shareholder (and on any voting securities added to the Escrow Fund in respect of such shares of SumTotal Purchaser Common Stock), and the . The Escrow Agent in whose name the shares are held shall vote such shares on all matters as instructed by the respective stockholders in writing. (iv) So long as the closing sales price for one share of SumTotal Common Stock as reported on the Nasdaq National Market on the day before any sale under this Section 7.3(c)(iv) is equal to or greater than the SumTotal Stock Price, the Stockholder Representative, on behalf of the Pathlore Stockholders, may from time to time direct deliver such proxies, consents and other materials and documents as may be necessary to enable the Shareholders to exercise such voting rights, and shall instruct the Scheme Shareholders to return any instructions with respect to such voting rights to the Escrow Agent, who shall tabulate all votes received by the Scheme Shareholders and shall vote on their behalf in accordance with the instructions given by each such Shareholder. In the absence of instructions by any such Scheme Shareholder, the Escrow Agent to sell Escrow Shares for cashshall not vote any of the shares held on behalf of such Scheme Shareholder. (ii) Cash dividends, and any non-cash taxable dividends or distributions, on any shares of Purchaser Common Stock in the proceeds Escrow Fund shall be distributed to the Scheme Shareholders according to their Pro Rata Portion, and shall not become a part of the Escrow Fund. Any shares of Purchaser Common Stock or other equity securities issued or distributed by Purchaser after the Effective Time in a nontaxable transaction (net “New Shares”) in respect of ordinary and reasonable commissions) of any such sale Purchaser Common Stock in the Escrow Fund which have not been released from the Escrow Fund shall be added to the Escrow Fund and be available for recovery under Section 7.2become a part thereof. In connection with any sale of Escrow Shares pursuant to this Section 7.3(c)(iv), The parties hereto (other than the Escrow Agent shall be entitled to receive and rely upon written direction from Agent) agree that the Stockholder Representative as to Scheme Shareholders are the manner and method to carry out such sale, including without limitation (i) identifying owners of any stock in the number Escrow Fund. New Shares issued in respect of shares to be sold, (ii) identifying the brokerage firm the Stockholder Representative requests to be used or instructing the Escrow Agent to use its affiliated brokerage service, and (iii) setting forth any necessary or special instructions with respect to the sale (including any stop loss or minimum price per share instructions). (v) The Escrow Agent shall invest and reinvest the Escrow Fund at the joint written instructions of SumTotal and the Stockholder Representative. In the absence of joint written directions Purchaser Common Stock which have been released from SumTotal and the Stockholder Representative, the Escrow Fund shall not be invested in a U.S. Bank Money Market account. The joint written instructions shall specify that added to the Escrow Fund but shall be invested in any one or combination of distributed to the following: record holders thereof. (aiii) readily marketable direct obligations of The parties hereto agree to provide the Government of the United States or any agency or instrumentality thereof or readily marketable obligations unconditionally guaranteed Escrow Agent with a certified tax identification number by the full faith signing and credit of the Government of the United States, (b) 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 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 any corporation organized under the laws of any State of the United States, rated at least “Prime-1” returning a Form W-9 (or then equivalent gradeForm W-8 BEN, in case of non-U.S. persons) by Xxxxx’x Investors Servicesto the Escrow Agent, Inc. or “A-1” (or then equivalent grade) by Standard & Poors, Inc. or (d) money market funds that invest solely in direct obligations upon the execution and delivery of the U.S. governmentthis Agreement.

Protection of Escrow Fund. (ia) The Escrow Agent shall hold and safeguard the Escrow Fund during the Escrow Period, shall treat such fund as a trust an escrow fund in accordance with the terms of this Agreement and not as the property of Acquiror and shall hold and dispose of the Escrow Fund only in accordance with the terms hereof. All income earned on the cash in The Escrow Fund shall be held by the Escrow FundAgent in escrow and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party hereto. (b) Unless otherwise jointly directed in writing by Acquiror and the Stockholders’ Agent, the Escrow Agent shall invest and reinvest the Cash Deposit in accordance with the Investment Instructions set forth on Exhibit B attached hereto. Monthly statements will be provided to Acquiror and the Stockholders’ Agent reflecting the balance and changes in value of the Escrow Fund and all transactions executed with respect to the Cash Deposit and Stock Deposit, if any. Such written instructions, if any, referred to in the foregoing sentence shall specify the type and identity of the investments to be purchased and/or sold and such other information as the Escrow Agent may reasonably require. The Escrow Agent shall not be liable for failure to invest or reinvest funds absent sufficient written direction. It is expressly agreed and understood by the parties hereto that the Escrow Agent shall not in any way whatsoever be liable for losses on any investments, including, but not limited to, losses from market risks due to premature liquidation or resulting from other actions taken pursuant to this Agreement. (c) It is hereby expressly stipulated and agreed that all interest and other earnings on the Cash Deposit shall become a part of, and be held as an additional portion of the Escrow Fund for all purposes, and that all losses resulting from the investment or reinvestment thereof from time to time and all amounts charged thereto to compensate or reimburse the Escrow Agent from time to time for amounts owing to it hereunder (if such amounts are not paid by Acquiror and Stockholders’ Agent in proportion to each Pathlore Stockholder’s original share a timely manner as set forth herein) shall from the time of such loss or charge no longer constitute part of the Escrow Fund. On or before the execution and delivery of this Agreement Acquiror shall provide to the Escrow Agent a completed Form W-9, and as soon as reasonably practicable, but in any event prior to any distribution of the Escrow Fund to the Stockholders’ Agent, the Stockholders’ Agent shall cause to be provided to the Escrow Agent a Form W-9 or Form W-8, whichever is appropriate, with respect to each Effective Time Holder. Except for the delivery of Forms 1099, the Escrow Agent shall have no duty to prepare or file any Federal or state tax return or report with respect to any funds held under this Agreement or any earnings thereon. The parties hereto agree that the Pathlore Stockholders, based on each Pathlore Stockholder’s Proportionate Interest, shall Effective Time Holders are intended to be the owners of any cash contained in the Escrow Fund, and that all interest on or other taxable income, if any, earned from the investment of cash contained in the Escrow Fund shall be treated for Tax purposes as earned by such Pathlore Stockholder. At the end of each calendar year, an amount equal to the income earned from the investment of cash contained amounts in the Escrow Fund for income tax purposes, with the preceding taxable year (or portion thereof) shall be distributed to the Pathlore Stockholders Non-Accredited Company Securityholders treated as owning, in proportion to each applicable stockholder’s Proportionate Interesttheir respective Pro Rata Shares, the portion of the Cash Deposit contributed to the Escrow Fund on their behalf, and the Accredited Company Securityholders treated as owning, in proportion to their respective Pro Rata Shares, the remainder of the Cash Deposit and the Stock Deposit. Such ownership will be appropriately adjusted to reflect earnings and losses on the Cash Deposit and distributions on the Stock Deposit. The Escrow Agent shall prepare Forms 1099 accordingly. With respect to the preparation and delivery of Forms 1099 and all matters pertaining to the reporting of earnings on funds held under this Agreement, the Escrow Agent shall be entitled to request and receive joint written instructions from Acquiror and the Stockholders’ Agent, and the Escrow Agent shall be entitled to rely conclusively and without further inquiry on such joint written instructions. (iid) Any shares of SumTotal Common Acquiror Stock or other equity securities issued or distributed by SumTotal (including shares issued upon a stock split) Acquiror (“New Shares”) in respect of shares of SumTotal Common Acquiror Stock included in the Escrow Fund which Stock Deposit that have not been released from the Escrow Fund as of the time of such issuance or distribution by SumTotal shall be delivered to the Escrow Agent by the Acquiror added to the Escrow Fund and become a part thereofStock Deposit. Cash dividends on SumTotal Common Stock and New Shares issued in respect of shares of SumTotal Common Acquiror Stock which that have been released from the Escrow Fund as of the time of such issuance or distribution by SumTotal shall not be added to the Escrow Fund Stock Deposit but shall be distributed by the Acquiror to the Pathlore Stockholders in proportion to their Proportionate Interest in the Escrow Fund. (iiirecord holder(s) Each Pathlore Stockholder shall be entitled to control the vote of such stockholder’s Proportionate Interest in the shares of SumTotal Common thereof. Cash dividends on Acquiror Stock held in the Escrow Fund shall be paid by Acquiror directly to the Effective Time Holders (for the avoidance of doubt other than the Non-Accredited Company Securityholders) who are the record holder(s) thereof. (e) The Effective Time Holders, other than the Non-Accredited Company Securityholders, shall have full voting rights with respect to the shares of Acquiror Stock contributed to the Stock Deposit by (or on behalf of) the Effective Time Holders (and on any voting securities New Shares added to the Escrow Fund Stock Deposit in respect of such shares of SumTotal Common Acquiror Stock), and the Escrow Agent in whose name the shares are held shall vote such shares on all matters as instructed by the respective stockholders in writing. (iv) So long as the closing sales price for one share of SumTotal Common Stock as reported on the Nasdaq National Market on the day before any sale under this Section 7.3(c)(iv) is equal to or greater than the SumTotal Stock Price, the Stockholder Representative, on behalf of the Pathlore Stockholders, may from time to time direct the Escrow Agent to sell Escrow Shares for cash, and the proceeds (net of ordinary and reasonable commissions) of any such sale shall be added to the Escrow Fund and be available for recovery under Section 7.2. In connection with any sale of Escrow Shares pursuant to this Section 7.3(c)(iv), the Escrow Agent shall be entitled to receive and rely upon written direction from the Stockholder Representative as to the manner and method to carry out such sale, including without limitation (i) identifying the number of shares to be sold, (ii) identifying the brokerage firm the Stockholder Representative requests to be used or instructing the Escrow Agent to use its affiliated brokerage service, and (iii) setting forth any necessary or special instructions with respect to the sale (including any stop loss or minimum price per share instructions). (v) The Escrow Agent shall invest and reinvest the Escrow Fund at the joint written instructions of SumTotal and the Stockholder Representative. In the absence of joint written directions from SumTotal and the Stockholder Representative, the Escrow Fund shall be invested in a U.S. Bank Money Market account. The joint written instructions shall specify that the Escrow Fund shall be invested in any one or combination of the following: (a) readily marketable direct obligations of the 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, (b) 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 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 any corporation organized under the laws of any State of the United States, rated at least “Prime-1” (or then 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 direct obligations of the U.S. government.