Common use of Escrow Amount Clause in Contracts

Escrow Amount. Notwithstanding anything to the contrary in the other provisions of this Article I, Acquirer shall withhold from each Converting Holder’s applicable portion of the Merger Consideration payable and issuable to such Converting Holder pursuant to Section 1.3(a) such Converting Holder’s Pro Rata Share of the Escrow Amount (with cash and stock allocations thereof as set forth on the Spreadsheet, it being understood and agreed that Unaccredited Stockholders shall first contribute cash and all other Converting Holders shall contribute their Pro Rata Share of the remainder of the Escrow Amount in cash and shares of Acquirer Common Stock), and shall deposit the Escrow Amount with the Escrow Agent pursuant to Section 8.1. The cash and shares of Acquirer Common Stock deposited into the Escrow Fund shall, to the maximum extent possible, consist of vested cash and vested shares of Acquirer Common Stock. The Escrow Fund shall constitute partial security for the benefit of Acquirer (on behalf of itself or any other Indemnified Person) with respect to any Indemnifiable Damages pursuant to the indemnification obligations of the Converting Holders under Section 1.6(i) and Article VIII, and shall be held and distributed in accordance with Section 1.6(i) and Section 8.1. The adoption of this Agreement and the approval of the principal terms of the Merger by the Company Stockholders shall constitute, among other things, approval of the Escrow Amount, the withholding of the Escrow Amount by Acquirer and the appointment of the Stockholders’ Agent.

Escrow Amount. Notwithstanding anything to At the contrary in the other provisions of this Article IClosing, Acquirer shall withhold from each Converting Holder’s applicable portion of the Merger Consideration payable and issuable to such Converting Holder pursuant to Section 1.3(a) such Converting Holder’s Pro Rata Share of the Escrow Amount (with cash and stock allocations thereof as set forth on the Spreadsheet, it being understood and agreed that Unaccredited Stockholders shall first contribute cash and all other Converting Holders shall contribute their Pro Rata Share of the remainder of the Escrow Amount in cash and shares of Acquirer Common Stock), and shall deposit the Escrow Amount with the Escrow Agent pursuant to Section 8.1. The cash and shares of Acquirer Common Stock deposited into the Escrow Fund shall, to the maximum extent possible, consist of vested cash and vested shares of Acquirer Common Stock. The Escrow Fund shall constitute partial security for the benefit general obligations of Acquirer Target and the Significant Target Shareholders under this Agreement, the lesser of (i) an amount of Merger Consideration having a value of 10% of the value of the total Merger Consideration (with each share of Acquiror Common Stock valued for this purpose at the closing price of Acquiror Common Stock on the NASDAQ on the day immediately preceding the Closing Date) and (ii) the amount calculated by part (i) of this Section, reducing the Merger Securities held in escrow by an amount necessary for the total value of the shares of Acquiror Common Stock included in the Merger Securities, less the total value of all shares of Acquiror Common Stock included in the Escrow Account, to be equal to the sum of: (x) the Cash Component, plus (y) the aggregate amount of Cash Out Amounts and Deal Expenses payable at the Closing, plus (z) the total value of shares of Acquiror Common Stock included in the Escrow Account (collectively, the "Escrow Amount") shall be delivered by Acquiror (on behalf of itself or any other Indemnified Personthe Significant Target Shareholders, allocable to each of them on a pro rata basis compared with the value of Merger Consideration payable to each of them in connection with the Merger) with respect to any Indemnifiable Damages NBD Bank, as escrow agent (the "Escrow Agent"), to be deposited and held in and released from escrow pursuant to the indemnification obligations of Escrow Agreement to be entered into at the Converting Holders under Section 1.6(i) and Article VIIIClosing, and shall be deposited and held and distributed in accordance with Section 1.6(i) and Section 8.1. The adoption of this Agreement and escrow pursuant to the approval of the principal terms of the Merger by the Company Stockholders shall constitute, among other things, approval provisions of the Escrow AmountAgreement until May 31, 1999. Subject to the foregoing, the withholding mix of Merger Securities and Cash Component in the Escrow Amount by Acquirer Account shall be identical to the mix of Merger Securities and Cash Component payable to the appointment Significant Target Shareholders, in the aggregate, in connection with the Merger, or as Acquiror and each Significant Target Shareholder shall otherwise agree. For purposes of this Section, each share of Acquiror Common Stock shall be deemed to have a value equal to the Stockholders’ Agentclosing price of Acquiror Common Stock on the NASDAQ on the day immediately preceding the Closing Date.

Escrow Amount. Notwithstanding anything (a) At the Closing, Parent shall transfer or cause to be transferred (i) on behalf of Long Hill, the contrary in the other provisions of this Article ILong Hill Escrow Shares, Acquirer shall withhold from each Converting Holder’s applicable portion of the Merger Consideration payable and issuable to such Converting Holder pursuant to Section 1.3(a) such Converting Holder’s Pro Rata Share of the Escrow Amount (with cash and stock allocations thereof as set forth on the SpreadsheetAllocation Schedule, it being understood (ii) on behalf of each Shareholder (other than Long Hill) who is an Accredited Shareholder, the Other Escrow Shares allocable to such Shareholder, as set forth on the Allocation Schedule, and agreed that Unaccredited Stockholders shall first contribute cash and all other Converting Holders shall contribute their Pro Rata Share (iii) on behalf of each Shareholder who is a Non-Accredited Shareholder, the remainder Escrow Cash allocable to such Shareholder, as set forth on the Allocation Schedule, in each case, to the Escrow Agent to hold in trust as an escrow fund (the “Escrow Fund”) pursuant to the terms of the Escrow Amount in cash and shares of Acquirer Common Stock), and shall deposit the Escrow Amount with the Escrow Agent pursuant to Section 8.1. The cash and shares of Acquirer Common Stock deposited into the Escrow Fund shall, to the maximum extent possible, consist of vested cash and vested shares of Acquirer Common StockAgreement. The Escrow Fund shall constitute partial security for the benefit of Acquirer (on behalf of itself or any other Indemnified Person) with respect be available to any Indemnifiable Damages satisfy Claimed Amounts pursuant to the indemnification obligations of the Converting Holders under Section 1.6(i) and Article VIII, and shall be held and distributed Shareholders in accordance with Section 1.6(i) 10 and to satisfy any Deficiency Amount in accordance with Section 8.12.6. The adoption Parent shall pay all of the fees and expenses of the Escrow Agent in connection with this Agreement and the approval Escrow Agreement. (b) The Parties agree that, for Tax reporting purposes, all interest or other income earned from the investment of the Escrow Cash in any Taxable year shall be reported as allocated to the applicable Shareholders for whom it is being held in escrow until the distribution of the Escrow Cash (or portions thereof) is determined, and the Escrow Agent will annually file information returns (including Internal Revenue Service Form 1099) consistent with such treatment. (c) Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge and agree that the Escrow Fund includes an amount equal to 0.9666% multiplied by the Estimated Company Value the (“PPP Escrow Portion”) that shall be available to satisfy Claimed Amounts pursuant to the indemnification obligations of the Shareholders in accordance with Section 10, solely in relation to any of the $145,000.00 of the principal terms amount of the forgivable loan identified on the Estimated Closing Statement and Final Closing Statement as the “PPP Loan” by the Commonwealth Bank & Trust that such lender determines during the Escrow Period to be not forgiven. Parent and Merger Sub agree to pursue the forgiveness of such PPP Loan in good faith and to not take a position with respect to the forgivability of such PPP Loan that is contrary to the position taken by the Company Stockholders shall constitutein relation thereto prior to the Effective Date, among other things, approval of the Escrow Amount, the withholding of the Escrow Amount unless required by Acquirer and the appointment of the Stockholders’ Agentapplicable Law.

Escrow Amount. Notwithstanding anything to In connection with, and upon, the contrary in the other provisions final payment of this Article I, Acquirer shall withhold from each Converting Holder’s applicable portion of consideration under the Merger Consideration payable and issuable to such Converting Holder pursuant to Section 1.3(a) such Converting Holder’s Pro Rata Share of the Escrow Amount (with cash and stock allocations thereof as set forth on the SpreadsheetAgreement, it being understood and agreed that Unaccredited Stockholders shall first contribute cash and all other Converting Holders shall contribute their Pro Rata Share of the remainder of the Escrow Amount in cash and shares of Acquirer Common Stock), and Purchaser shall deposit the Escrow Amount with the Escrow Agent pursuant to Section 8.1. The cash an aggregate of (i) $118,071.10 in immediately available funds (together with any proceeds thereof, the “Cash Escrow Amount”) and (ii) stock certificates representing an aggregate of 61,500 shares of Acquirer Common Stock deposited into the Escrow Fund shallnon-voting common stock of Purchaser issued in the names of the stockholders of the Company set forth on Schedule 1 to this Agreement (each, to a “Stockholder” and collectively, the maximum extent possible“Stockholders”), consist such certificates representing the number of vested cash and vested shares of Acquirer Common Stock. The common stock of Purchaser set forth opposite each such Stockholder’s name on Schedule 1 (collectively, the “Escrow Fund shall constitute partial security for Shares” and, together with the benefit of Acquirer (on behalf of itself or any other Indemnified Person) with respect to any Indemnifiable Damages pursuant to the indemnification obligations of the Converting Holders under Section 1.6(i) and Article VIII, and shall be held and distributed in accordance with Section 1.6(i) and Section 8.1. The adoption of this Agreement and the approval of the principal terms of the Merger by the Company Stockholders shall constitute, among other things, approval of the Cash Escrow Amount, the withholding “Escrow Amount”). The Escrow Agent shall hold the Cash Escrow Amount and, subject to the terms and conditions hereof, shall invest and reinvest the Cash Escrow Amount and the proceeds thereof as directed in Section 3. The Stockholders’ Representative hereby agrees to use commercially reasonable efforts to cause each Stockholder to execute three (3) stock powers of attorney in the form set forth on Exhibit A (“Stock Powers”) in favor of Purchaser, allowing for the transfer of such Stockholder’s Escrow Shares to Purchaser in the event, and only in the event, that Purchaser is entitled to receive any or all of such Escrow Shares pursuant to the terms hereof. The Stockholders’ Representative shall cause the Stock Powers that are provided to the Stockholders’ Representative to be deposited with the Escrow Agent within ten (10) days following the date of this Agreement. The certificates representing the Escrow Shares will be legended to reflect the deposit of such Escrow Shares under this Agreement. Such legend shall be removed upon disbursement of the Escrow Amount by Acquirer and the appointment of the Stockholders’ AgentShares, as described in Section 5 hereof.

Escrow Amount. Notwithstanding anything 1.7.1 On the Closing Date, Purchaser shall deposit with the Escrow Agent an aggregate cash amount equal to Six Hundred Fifty Thousand Dollars ($650,000) (the contrary in “Escrow Amount”) for the other provisions purpose of this Article I, Acquirer shall withhold from each Converting Holder’s applicable portion securing the indemnification obligations of Seller Companies and Parent and the post-closing adjustments of the Merger Consideration payable Purchase Price set forth in this Agreement, of which (i) Five Hundred Thousand Dollars ($500,000) (the “Indemnification Escrow Amount”) may be used by Purchaser, in its sole and issuable absolute discretion, to such Converting Holder satisfy any indemnification Claim under this Agreement or any agreement or instrument contemplated by this Agreement, and (ii) One Hundred Fifty Thousand Dollars ($150,000) (the “Working Capital Escrow Amount”) may be used by Purchaser, in its sole and absolute discretion, to satisfy the post-Closing adjustments of the Purchase Price pursuant to Section 1.3(a) such Converting Holder’s Pro Rata Share of the 1.8. The Escrow Amount (with cash and stock allocations thereof as set forth on the Spreadsheet, it being understood and agreed that Unaccredited Stockholders shall first contribute cash and all other Converting Holders shall contribute their Pro Rata Share of the remainder of the Escrow Amount in cash and shares of Acquirer Common Stock), and shall deposit the Escrow Amount with be held by the Escrow Agent pursuant to Section 8.1. The cash and shares the terms of Acquirer Common Stock deposited into the escrow agreement substantially in the form of Exhibit 1.7.1 attached hereto (the “Escrow Fund shall, to the maximum extent possible, consist of vested cash and vested shares of Acquirer Common StockAgreement”). The Escrow Fund Amount shall constitute partial security for the benefit of Acquirer (on behalf of itself be held as a trust fund and shall not be subject to any Lien, attachment, trustee process or any other Indemnified Person) with respect to judicial process of any Indemnifiable Damages pursuant to the indemnification obligations creditor of the Converting Holders under Section 1.6(i) and Article VIIIany party, and shall be held and distributed disbursed solely for the purposes and in accordance with the terms of the Escrow Agreement. 1.7.2 Subject to the terms and conditions of the Escrow Agreement, not later than six (6) months after the Closing Date, Purchaser and Parent will cause the Escrow Agent to remit to Parent Two Hundred Fifty Thousand Dollars ($250,000) of the Indemnification Escrow Amount, less the sum of any amounts which are owed to or have been retained by Purchaser from the Indemnification Escrow Amount in satisfaction of any indemnification Claims of Purchaser, any pending, unresolved Claims of Purchaser, or any other obligations of any of the Seller Companies or Parent under this Agreement or any agreements, documents, instruments, and transactions contemplated hereby. 1.7.3 Subject to the terms and conditions of the Escrow Agreement, not later than twelve (12) months after the Closing Date, Purchaser and Parent will cause the Escrow Agent to remit to Seller the remaining Indemnification Escrow Amount held by Purchaser, less the sum of any amounts which are owed to or have been retained by Purchaser from the Indemnification Escrow Amount in satisfaction of any indemnification Claims of Purchaser, any pending, unresolved Claims of Purchaser, or any other obligations of any of Seller Companies or Parent under this Agreement or any agreements, documents, instruments, and transactions contemplated hereby (other than any amounts retained under Section 1.7.2). 1.7.4 Upon the final resolution of any unresolved Claims of Purchaser, if it is determined that all, or any portion of the remaining Indemnification Escrow Amount, is due to Parent, Purchaser and Parent shall cause the Escrow Agent to make such payment to Parent, less any amount due to Purchaser. 1.7.5 Purchaser shall have the right, in its sole and absolute discretion, to satisfy any amount owed to Purchaser in satisfaction of any indemnification Claim or any other obligations of any of the Seller Companies or Parent under this Agreement or any agreements, documents, instruments, and transactions contemplated hereby from the Indemnification Escrow Amount or to recover such amounts directly from any of the Seller Companies and Parent, jointly and severally, or recover such amount from any remaining portion of the Working Capital Escrow Amount, or any combination of the foregoing. 1.7.6 None of the indemnification Claims of Purchaser under this Agreement or any agreements, documents, instruments, and transactions contemplated hereby shall be limited by the amount of the Indemnification Escrow Amount or limit Purchaser’s rights and remedies under this Agreement or any agreements, documents, instruments, and transactions contemplated hereby, including, but not limited to, Section 8. 1.7.7 Subject to the terms and conditions of the Escrow Agreement, the Working Capital Escrow Amount shall be held by the Escrow Agent and released on the applicable Settlement Date. 1.7.8 Purchaser shall have the right, in its sole and absolute discretion, to satisfy any amount owed to Purchaser in satisfaction of any Working Capital Shortfall, which shall not be subject to the Hurdle Rate, determined in accordance with Section 1.6(i) 1.8 from the Working Capital Escrow Amount or to recover such amounts directly from any of the Seller Companies and Parent, jointly and severally, or recover such amount from any remaining portion of the Indemnification Escrow Amount, or any combination of the foregoing. 1.7.9 None of the Working Capital Shortfall Purchase Price adjustments under this Agreement shall be limited by the amount of the Working Capital Escrow Amount or limit Purchaser’s rights and remedies under this Agreement, including, but not limited to, Section 8.1. 1.8. 1.7.10 The adoption of this Agreement and the approval of the principal terms of the Merger transactions hereby by the board of directors of Parent and the stockholders (or members, as applicable) and board of directors (or similar managing body) of each Seller Company Stockholders shall constitute, among other things, each constitute approval of the Escrow AmountAgreement and of all of the arrangements relating thereto, including without limitation the withholding placement in escrow of the Escrow Amount by Acquirer and the appointment of the Stockholders’ AgentAmount.

Escrow Amount. In connection with the Stock Exchange and the Merger, Parent, the Stockholders’ Agent, Continental Stock Transfer and Trust Company (the “Escrow Agent”) and the Signing Stockholders, individually, are entering into the escrow agreement in the form attached hereto as Exhibit C (the “Escrow Agreement”). Notwithstanding anything to the contrary set forth in the other provisions of this Article IAgreement, Acquirer in connection with any payment hereunder, Parent shall withhold from each Converting Holder’s applicable portion of the Merger Consideration payable and issuable shares issued to such Converting Holder the Rollover Stockholders pursuant to Section 1.3(a1.1 and the cash otherwise payable to each holder of outstanding Company Capital Stock in accordance with Section 1.7(a), Stock Options in accordance with Section 1.7(b) and Warrants in accordance with Section 1.7(c) cash and, in the case of the Rollover Stockholders, shares (the “Escrow Shares”) in an amount equal to such Converting Holder’s holders’ Pro Rata Share of the Escrow Amount (with cash and stock allocations thereof as set forth on the Payment Spreadsheet. For purposes of the foregoing, each such Stockholder’s, holder of Stock Options or holder of Warrants “Pro Rata Share” shall be equal to such holders initial Escrow Percentage as set forth on the Payment Spreadsheet, it being understood which is a fraction whose numerator is the aggregate Merger Consideration payable to such holder as set forth in the Payment Spreadsheet, and agreed that Unaccredited Stockholders shall first contribute cash and all other Converting Holders shall contribute their whose denominator is $11,308,650. When calculating the Rollover Stockholders’ initial Pro Rata Share of the remainder Escrow Fund, the value of the Escrow Shares shall be $750,245 for ▇▇▇▇▇▇ ▇▇▇▇▇ and $150,000 for ▇▇▇▇ ▇▇▇▇. For purposes of the foregoing, “Escrow Amount” shall initially mean $1,800,000 (with references to the Escrow Amount in this Agreement, as at any applicable date, giving effect to any reduction of such amount from time to time). Amounts to be withheld in respect of the Rollover Stockholders’ Pro Rata Share of the Escrow Amount in cash and shall be withheld first from shares of Acquirer Parent Common Stock), and shall deposit the Escrow Amount with the Escrow Agent Stock issued pursuant to Section 8.11.1. The cash and If the value of such withheld shares of Acquirer Common Stock deposited into the Escrow Fund shall, (which shall be valued at $5.99 per share) is insufficient to the maximum extent possible, consist of vested cash and vested shares of Acquirer Common Stock. The Escrow Fund shall constitute partial security provide for the benefit of Acquirer (on behalf of itself or any other Indemnified Person) with respect to any Indemnifiable Damages pursuant to the indemnification obligations of the Converting Holders under Section 1.6(i) and Article VIII, and shall be held and distributed in accordance with Section 1.6(i) and Section 8.1. The adoption of this Agreement and the approval of the principal terms of the Merger by the Company Stockholders shall constitute, among other things, approval Rollover Stockholders’ Pro Rata Share of the Escrow Amount, then and only to the withholding extent of such insufficiency shall cash otherwise payable to the Rollover Stockholders in respect of Company Capital Stock be withheld by Parent to satisfy such Rollover Stockholders’ obligations in respect of the Escrow Amount. Promptly following the Effective Time, Parent shall cause the Escrow Amount by Acquirer consisting of cash and shares to be deposited with the Escrow Agent and the appointment Escrow Agent shall hold such shares in its vault and such cash in an interest bearing escrow account (collectively, the shares and cash, the “Escrow Fund”) as security for the indemnification obligations under Article 8 and for purposes of paying any Adjustment Amount pursuant to Section 1.7(h)(iii). All income and gains earned on the Escrow Fund shall be included by Parent as taxable income or loss of Parent and the Escrow Agreement shall provide for the Escrow Agent to make quarterly distributions to Parent equal to forty percent (40%) of the taxable income recognized on the Escrow Fund in such quarter to satisfy any tax obligations that may arise as a result of such income and gains being attributed to Parent. Any income and gains of the Escrow Fund shall be available to Parent as part of the Escrow Fund, but if not paid to Parent in connection with the indemnification obligations owed to any Parent Indemnitee, or paid to Parent to cover Taxes, shall ultimately be distributable to the Stockholders’ Agent, holders of Stock Options and holders of Warrants in accordance with this Agreement and the Escrow Agreement. The parties acknowledge and agree that any amounts (whether principal or income and gains on principal earned during the term of the Escrow Fund) distributed by the Escrow Agent from the Escrow Fund to the Stockholders, holders of Stock Options and holders of Warrants pursuant to the terms of the Escrow Agreement shall be treated, for U.S. federal income tax purposes, as additional consideration paid to the Stockholders, holders of Stock Options and holders of Warrants for their shares pursuant to the Stock Exchange and the Merger as and when that amount is distributed.