Common use of Escrow Period Clause in Contracts

Escrow Period. Distribution upon the First and Second Escrow Release Dates. Subject to the requirements set forth in this Section 7.2(b), the Escrow Fund shall remain in existence immediately following the Closing Time and shall terminate at 5:00 p.m., California Time on the Second Escrow Release Date (as defined below). As used herein "First Escrow Release Date" shall mean the earlier of (i) the date thirty (30) days after the date of delivery by BackWeb Parent's independent auditors to BackWeb Parent of signed, audited consolidated financial statements for the BackWeb Parent fiscal year ended December 31, 1997 and (ii) May 1, 1998. BackWeb Parent shall notify the Escrow Agent in writing of the establishment of the First Release Date. As used herein "Second Escrow Release Date" shall mean the date being six months after the First Escrow Release Date. The First Escrow Release Date and the Second Escrow Release Date are referred to herein collectively as the "Escrow Release Dates." On the First Escrow Release Date, a portion of the Escrow Fund shall be released from escrow to the Holders in Escrow as reasonably practicable in proportion to their respective Proportionate Escrow Interest in an amount equal to one half of the entire Escrow Amount, less any Holdover Amount (as defined below). On the Second Escrow Release Date, a portion of the Escrow Fund shall be released from escrow to the Holders in Escrow as reasonably practicable in proportion to their respective Proportionate Escrow Interest in an amount equal to the entire Escrow Amount then remaining in the Escrow Fund less any Holdover Amount. As soon as all claims relating to a Holdover Amount have been resolved, the Escrow Agent shall deliver to the appropriate Holders in Escrow the remaining portion of the Escrow Fund not required to satisfy such claims and the Escrow Fund shall be terminated. Deliveries of Escrow Amounts from the Escrow Fund to the Holders in Escrow pursuant to this Section 7.2(b) shall be made in proportion to their respective Proportionate Escrow Interest as reasonably practicable. As used herein "Holdover Amount" shall mean (y) any amounts previously returned for cancellation to the Surviving Corporation including, without limitation, such amounts returned pursuant to Section 1.7 of this Agreement and (z) any additional amount which, in the reasonable judgment of BackWeb Parent, subject to the objection of the Agent and subsequent arbitration of the matter in the manner provided in Section 7.2(e) hereof, is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate delivered to the Escrow Agent prior to the applicable Escrow Release Date (which amount shall remain in the Escrow Fund until such claims have been resolved). If any Holdover Amount shall exist on the Second Escrow Release Date, such Holdover Amount shall cause the Escrow Fund to remain in existence until such claims have been resolved.

Escrow Period. Distribution upon The Escrow Period shall terminate for all matters on the First and Second Escrow Release Dates. Subject one (1) year anniversary of the Effective Time; provided, however, that with respect to any items subject to resolution through the requirements set forth in this Section 7.2(b)audit process, the Escrow Fund Period shall remain in existence immediately following the Closing Time and shall terminate at 5:00 p.m., California Time end on the Second Escrow Release Date (as defined below). As used herein "First Escrow Release Date" shall mean the earlier of (i) the date thirty (30) days after the date of delivery by BackWeb Parent's independent auditors to BackWeb Parent issuance of signed, the audited consolidated financial statements of Parent for the BackWeb Parent fiscal year ended ending December 31, 1997 and (ii) May 12001 which include the results of Company, 1998. BackWeb Parent shall notify the Escrow Agent in writing of the establishment of the First Release Date. As used herein "Second Escrow Release Date" shall mean the date being six months after the First Escrow Release Date. The First Escrow Release Date and the Second Escrow Release Date are referred to herein collectively as the "Escrow Release Dates." On the First Escrow Release Dateif earlier; provided, further, that a portion of the Escrow Fund shall be released from escrow to the Holders in Escrow as reasonably practicable in proportion to their respective Proportionate Escrow Interest in an amount equal to one half of the entire Escrow AmountShares and/or cash, less any Holdover Amount (as defined below). On the Second Escrow Release Date, a portion of the Escrow Fund shall be released from escrow to the Holders in Escrow as reasonably practicable in proportion to their respective Proportionate Escrow Interest in an amount equal to the entire Escrow Amount then remaining in the Escrow Fund less any Holdover Amount. As soon as all claims relating to a Holdover Amount have been resolved, the Escrow Agent shall deliver to the appropriate Holders in Escrow the remaining portion of the Escrow Fund not required to satisfy such claims and the Escrow Fund shall be terminated. Deliveries of Escrow Amounts from the Escrow Fund to the Holders in Escrow pursuant to this Section 7.2(b) shall be made in proportion to their respective Proportionate Escrow Interest as reasonably practicable. As used herein "Holdover Amount" shall mean (y) any amounts previously returned for cancellation to the Surviving Corporation including, without limitation, such amounts returned pursuant to Section 1.7 of this Agreement and (z) any additional amount which, in the reasonable judgment of BackWeb Parent, subject to the objection of the Agent and subsequent arbitration of the matter in the manner provided in Section 7.2(e) hereof, which is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate theretofore delivered to the Escrow Agent as provided in Section 8.5 below prior to the applicable termination of the Escrow Release Date (which amount Period with respect to facts and circumstances existing prior to the expiration of the Escrow Period, shall remain in the Escrow Fund until such claims have been resolved). If any Holdover Amount Parent shall exist on deliver to Escrow Agent and the Second Escrow Release DateStockholders' Agent a certificate specifying the Effective Time and specifying the date of issuance of the audited consolidated financial statements of Parent for the fiscal year ending December 31, such Holdover Amount shall cause 2001 which include the results of Company. After the expiration of the Escrow Fund Period, all amounts held in the Escrow Fund, except that portion of the Escrow Shares and/or cash which is necessary (i) to remain satisfy any unsatisfied claims specified in existence until such claims have been resolvedany Officer's Certificate theretofore delivered to the Stockholders' Agent and Escrow Agent as provided in Section 8.5 below prior to the termination of the Escrow Period with respect to facts and circumstances existing prior to the expiration of the Escrow Period, and (ii) pursuant to Section 8.8 hereof, to reimburse the Stockholders' Agent for un-reimbursed, reasonable and actual expenses and fees incurred prior to the termination of the Escrow Period and any additional reasonable estimated expenses to be incurred by the Stockholders' Agent (as specified in a Certificate to be delivered to Parent and Escrow Agent prior to the termination of the Escrow Period) in his defense of any unsatisfied claim as set forth in sub-section (i) above, shall be promptly distributed to the Company Stockholders in accordance with the Escrow Agreement.

Escrow Period. Distribution upon the First and Second Escrow Release Dates. Subject to the requirements set forth in this Section 7.2(b), the Escrow Fund shall remain in existence immediately following the Closing Time and (a) The escrow shall terminate at 5:00 p.m., California Time on the Second Escrow Release Date (as defined below). As used herein "First Escrow Release Date" shall mean the earlier of (i) the date thirty (30) days after the date of delivery by BackWeb Parent's independent auditors to BackWeb Parent of signed, audited consolidated financial statements for the BackWeb Parent fiscal one year ended December 31, 1997 and (ii) May 1, 1998. BackWeb Parent shall notify the Escrow Agent in writing anniversary of the establishment of the First Release Date. As used herein "Second Escrow Release Date" shall mean the date being six months after the First Escrow Release Date. The First Escrow Release Date and the Second Escrow Release Date are referred to herein collectively as the Effective Time ("Escrow Release Dates." On the First Escrow Release DatePeriod"); provided, however, that a portion of the Escrow Fund shall be released from escrow to the Holders in Escrow as reasonably practicable in proportion to their respective Proportionate Escrow Interest in an amount equal to one half of the entire Escrow AmountShares, less any Holdover Amount (as defined below). On the Second Escrow Release Date, a portion of the Escrow Fund shall be released from escrow to the Holders in Escrow as reasonably practicable in proportion to their respective Proportionate Escrow Interest in an amount equal to the entire Escrow Amount then remaining in the Escrow Fund less any Holdover Amount. As soon as all claims relating to a Holdover Amount have been resolved, the Escrow Agent shall deliver to the appropriate Holders in Escrow the remaining portion of the Escrow Fund not required to satisfy such claims and the Escrow Fund shall be terminated. Deliveries of Escrow Amounts from the Escrow Fund to the Holders in Escrow pursuant to this Section 7.2(b) shall be made in proportion to their respective Proportionate Escrow Interest as reasonably practicable. As used herein "Holdover Amount" shall mean (y) any amounts previously returned for cancellation to the Surviving Corporation including, without limitation, such amounts returned pursuant to Section 1.7 of this Agreement and (z) any additional amount which, in the reasonable judgment of BackWeb Parent, subject to the objection of the Agent and subsequent arbitration of the matter in the manner provided in Section 7.2(e) hereof, which is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate theretofore delivered to the Escrow Agent prior to termination of the applicable Escrow Release Date (which amount Period with respect to facts and circumstances existing prior to expiration of the Escrow Period, shall remain in the Escrow Fund until such claims have been resolved). If any Holdover Amount 724 Solutions shall exist on the Second Escrow Release Date, such Holdover Amount shall cause deliver to the Escrow Fund Agent a certificate specifying the Effective Time. (b) If 724 Solutions assumes the Ezlogin Options in connection with the Merger, 724 Solutions shall hold the Subject Options as security for the Optionholders' indemnity obligations under the Merger Agreement for the entire Escrow Period (unless such Subject Option is exercised, in which case the Subject Shares issuable upon exercise thereof shall be delivered to the Escrow Agent in accordance with the terms hereof); provided, however, that a portion of the Subject Options which is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate theretofore delivered to the Escrow Agent and the Shareholders' Agent prior to termination of the Escrow Period with respect to facts and circumstances existing prior to expiration of the Escrow Period and until such claims have been resolved, shall remain in existence subject to cancellation and subject to the provisions of Article VIII of the Merger Agreement until such claims have been resolved. (c) Any amounts remaining in the Escrow Fund after the Escrow Period that are not in dispute relating to the indemnification obligations of the Shareholders arising under the Merger Agreement and this Escrow Agreement shall be promptly distributed to the Shareholders (including Shareholders of Subject Shares) and any Subject Options then outstanding that are not in dispute relating to the indemnification obligations of the Optionholders arising under the Merger Agreement shall be promptly released to the Optionholders. As soon as all such disputed claims have been resolved, the Escrow Agent shall deliver to the Shareholders all of the Escrow Shares and other property remaining in the Escrow Fund and not required to satisfy such claims and expenses. Each Shareholder shall receive that number of Escrow Shares equivalent to such Shareholder's percentage interest in the Escrow Fund as set forth in SCHEDULE 1 attached hereto.

Escrow Period. Distribution upon the First and Second Escrow Release Dates. Subject to the requirements set forth in this Section 7.2(b), (a) The period of time during which the Escrow Fund shall remain be in existence (the "Escrow Period") shall commence immediately following the Closing Time Date, which shall be set forth in a certificate of Rational delivered to the Depositary Agent, and shall terminate at 5:00 p.m., California Time time, on the Second date which is the second anniversary of the Closing Date, provided that the Escrow Release Fund will terminate with respect to 50% of the Escrow Shares on the first anniversary of the Closing Date (as defined below). As used herein "First Escrow Release Date" shall mean the earlier of (i) the date thirty (30) days after the date of delivery by BackWeb Parent's independent auditors to BackWeb Parent of signed, audited consolidated financial statements for the BackWeb Parent fiscal year ended December 31, 1997 and (ii) May 1, 1998. BackWeb Parent shall notify the Escrow Agent in writing of the establishment of the First Release Date. As used herein "Second Escrow Release Date" shall mean the date being six months after the First Escrow Release Date. The First Escrow Release Date and the Second Escrow Release Date are referred to herein collectively as the "Escrow Release Dates." On the First Escrow Release Half-Time Date"); provided, however, that a portion of the Escrow Fund shall be released from escrow to the Holders in Escrow as reasonably practicable in proportion to their respective Proportionate Escrow Interest in an amount equal to one half of the entire Escrow AmountShares, less any Holdover Amount (as defined below). On the Second Escrow Release Date, a portion of the Escrow Fund shall be released from escrow to the Holders in Escrow as reasonably practicable in proportion to their respective Proportionate Escrow Interest in an amount equal to the entire Escrow Amount then remaining in the Escrow Fund less any Holdover Amount. As soon as all claims relating to a Holdover Amount have been resolved, the Escrow Agent shall deliver to the appropriate Holders in Escrow the remaining portion of the Escrow Fund not required to satisfy such claims and the Escrow Fund shall be terminated. Deliveries of Escrow Amounts from the Escrow Fund to the Holders in Escrow pursuant to this Section 7.2(b) shall be made in proportion to their respective Proportionate Escrow Interest as reasonably practicable. As used herein "Holdover Amount" shall mean (y) any amounts previously returned for cancellation to the Surviving Corporation including, without limitation, such amounts returned pursuant to Section 1.7 of this Agreement and (z) any additional amount which, in the reasonable judgment of BackWeb Parent, subject to the objection of the Agent and subsequent arbitration of the matter in the manner provided in Section 7.2(e) hereof, which is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate theretofore delivered to the Escrow Depositary Agent prior to termination of the applicable Half-Time Date or Escrow Release Period with respect to facts and circumstances existing prior to expiration of the Half-Time Date or Escrow Period (which amount a "Claim Notice") shall remain in the Escrow Fund until such claims have been resolved)Resolved. If any Holdover Amount As used herein, "Resolved" shall exist mean that the Depositary Agent shall have received either (i) joint written instruction signed by each of Rational and the Company Agent, giving instruction to the Depositary Agent with respect to resolution of a claim specified in a Claim Notice received by the Depositary Agent, which direction identifies such claim and provides specific instruction to the Depositary Agent with respect to the distribution of Escrow Shares in respect thereof, or (ii) a certificate of either Rational or the Company Agent certifying that a claim specified in a Claim Notice received by the Depositary Agent has been resolved by a court of competent jurisdiction, for which a final, non-appealable order has been issued entitling Rational or the Shareholders, as specified in such certificate, to the release from escrow of an amount of Escrow Shares, as specified therein, a copy of which order is attached thereto. The period of time during which the Holder's Accounts shall be in existence shall commence immediately following the Closing Date and shall terminate at 5:00 p.m., California time, on the Second date which is the fourth anniversary of the Closing Date (the "Restricted Share Escrow Release Date, such Holdover Amount shall cause the Escrow Fund to remain in existence until such claims have been resolved.Period")

Escrow Period. Distribution upon the First and Second Escrow Release Dates. Subject to the requirements set forth in this Section 7.2(b)following requirements, the Escrow Fund shall remain in existence immediately following the Closing Time and shall terminate at 5:00 p.m.p.m. Swiss Time, California Time on the Second Escrow Release Date date eighteen (as defined below). As used herein "First Escrow Release Date" shall mean the earlier of (i18) the date thirty (30) days after the date of delivery by BackWeb Parent's independent auditors to BackWeb Parent of signed, audited consolidated financial statements for the BackWeb Parent fiscal year ended December 31, 1997 and (ii) May 1, 1998. BackWeb Parent shall notify the Escrow Agent in writing of the establishment of the First Release Date. As used herein "Second Escrow Release Date" shall mean the date being six months after the First Escrow Release Date. The First Escrow Release Closing Date and (the Second Escrow Release period from the Closing Date are to the date eighteen (18) months after the Closing Date referred to herein collectively as the "Escrow Release Dates." On ESCROW PERIOD"); PROVIDED, HOWEVER, that on the First Escrow date which is twelve (12) months after the Closing Date (the "Early Release Date, a portion ") one-half of the Escrow Fund shall be released from escrow to the Holders in Escrow as reasonably practicable in proportion to their respective Proportionate Escrow Interest in an amount equal to one half of the entire Escrow AmountSelling Shareholders; PROVIDED FURTHER, less any Holdover Amount (as defined below). On the Second Escrow Release DateHOWEVER, a portion of that following the Escrow Fund Period the amount of five hundred thousand U.S. dollars ($500,000) shall be released from escrow to the Holders in Escrow as reasonably practicable in proportion to their respective Proportionate Escrow Interest in an amount equal to the entire Escrow Amount then remaining retained in the Escrow Fund less until the date which is twenty-four (24) months and one (1) day after the Closing Date (the "Additional Release Date"), solely for the purpose of securing the obligations described in Sections 3.21(l) and 7.3A of this Agreement; PROVIDED FURTHER, HOWEVER, that all or part of the Escrow Funds which, in the reasonable judgment of the Purchaser, are necessary to satisfy any Holdover Amountunsatisfied claims specified in any written notice theretofore delivered to the Escrow Agent and the Selling Shareholders prior to termination of the Escrow Period with respect to Damages claimed or litigation threatened or pending prior to expiration of the Escrow Period, or prior to the Early Release Date with respect to Damages claimed or litigation threatened or pending prior to the Early Release Date, shall remain in the Escrow Fund until such issues have been finally resolved. As soon as all such claims relating to a Holdover Amount have been resolved, the Escrow Agent shall deliver by wire transfer to the appropriate Holders Selling Shareholders Bank Account all Escrow Funds and other property remaining in Escrow the remaining portion of the Escrow Fund escrow and not required to satisfy such claims and claims. During the Escrow Fund shall be terminated. Deliveries Period (or, with respect to Sections 3.21(l) and 7.3A of Escrow Amounts from the Escrow Fund this Agreement, at any time prior to the Holders in Escrow pursuant to this Section 7.2(b) shall be made in proportion to their respective Proportionate Escrow Interest as reasonably practicable. As used herein "Holdover Amount" shall mean (y) any amounts previously returned for cancellation to Additional Release Date), the Surviving Corporation including, without limitation, such amounts returned pursuant to Section 1.7 of this Agreement and (z) any additional amount which, in the reasonable judgment of BackWeb Parent, subject to the objection of the Agent and subsequent arbitration of the matter in the manner provided in Section 7.2(e) hereof, is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate delivered Purchaser may submit to the Escrow Agent prior (with a copy to the applicable Escrow Release Date (which amount shall remain in Shareholders Representative) a written instruction to release all or any portion of the Escrow Fund until such claims have been resolved)Funds to the Purchaser to cover indemnifiable Damages. If any Holdover Amount shall exist on the Second Escrow Release Date, such Holdover Amount shall cause Shareholders Representative does not deliver to the Escrow Fund Agent (with a copy to remain the Purchaser) a written objection to such instruction within thirty (30) calendar days of delivery of the Purchaser's written instruction, then the Escrow Agent shall release funds in existence until accordance with the Purchaser's written instruction. If the Shareholders Representative delivers such claims have been resolveda timely written objection, then Section 7.6 shall apply.

Escrow Period. Distribution upon the First and Second Escrow Release Dates. Subject to the requirements set forth in this Section 7.2(b), the The Escrow Fund shall remain in existence immediately following until the Closing Time and shall terminate at 5:00 p.m., California Time on the Second Escrow Release Termination Date (as defined belowthe "Escrow Period"). As used herein "First Escrow Release Date" shall mean Notwithstanding the earlier of foregoing, (i) the date thirty remainder, if any, of the one million dollars (30$1,000,000) days after the date of delivery by BackWeb Parent's independent auditors to BackWeb Parent of signed, audited consolidated financial statements for the BackWeb Parent fiscal year ended December 31, 1997 and (ii) May 1, 1998. BackWeb Parent shall notify originally comprising the Escrow Agent in writing of the establishment of the First Release Date. As used herein "Second Escrow Release Date" shall mean the date being six months after the First Escrow Release Date. The First Escrow Release Date and the Second Escrow Release Date are referred to herein collectively as the "Escrow Release Dates." On the First Escrow Release Date, a portion Cash component of the Escrow Fund shall be released from escrow to the Holders in Escrow Target Stockholders upon the final resolution of any third party litigation pending or threatened as reasonably practicable in proportion to their respective Proportionate Escrow Interest in an amount equal to one half of the entire date hereof, and (ii) fifty percent (50%) of the total number of shares originally comprising the Escrow Amount, less any Holdover Amount (as defined below). On the Second Escrow Release Date, a portion Share component of the Escrow Fund shall be released from escrow to the Holders in Target stockholders on the 12-month anniversary and the balance of the Escrow as reasonably practicable in proportion to their respective Proportionate Escrow Interest in an amount equal to the entire Escrow Amount then Shares remaining in the Escrow Fund less any Holdover Amountshall be released on the 24-month anniversary of the Closing Date (each such date an "Escrow Release Date"), provided that Escrow Shares shall be released on an Escrow Release Date only to the extent the aggregate dollar value (calculated based upon the Closing Price) of all Escrow Shares otherwise available and scheduled for release on that date exceeds the dollar value of all bona fide claims for Damages asserted by Acquiror prior to such Escrow Release Date. As soon as all claims Any indemnification payment relating to a Holdover Amount have been resolved, bona fide claims asserted by Acquiror during the Escrow Agent shall deliver to first 12-month period following the appropriate Holders in Escrow Closing Date will be deducted from the remaining portion of the Escrow Fund not required to be released on the first Escrow Release Date, and to the extent that such amount is insufficient to indemnify the Indemnified Parties for such claims, the entire Escrow Fund shall be available to satisfy such claims and them. Upon the expiration of the Escrow Period, the Escrow Fund shall be terminated. Deliveries terminate with respect to all Escrow Cash and Escrow Shares; provided, however, that the amount of Escrow Amounts from Cash and the number of Escrow Fund to the Holders in Escrow pursuant to this Section 7.2(b) shall be made in proportion to their respective Proportionate Escrow Interest as reasonably practicable. As used herein "Holdover Amount" shall mean (y) any amounts previously returned for cancellation to the Surviving Corporation includingShares, without limitation, such amounts returned pursuant to Section 1.7 of this Agreement and (z) any additional amount which, in the reasonable judgment of BackWeb ParentAcquiror, subject to the objection of the Agent Stockholders' Representative (as defined in Section 8.8 below) and the subsequent arbitration of the matter claim in the manner provided in Section 7.2(e) hereofthe Escrow Agreement, is are necessary to satisfy any unsatisfied claims specified in any Officer's Certificate delivered to the Escrow Agent prior to the applicable expiration of such Escrow Release Period with respect to facts and circumstances existing on or prior to the Escrow Termination Date (which amount shall remain in the Escrow Fund (and the Escrow Fund shall remain in existence) until such claims have been resolved). If any Holdover Amount shall exist on the Second Escrow Release Date, such Holdover Amount shall cause the Escrow Fund to remain in existence until As soon as all such claims have been resolved, the Escrow Agent shall deliver to the stockholders of Target all Escrow Cash and Escrow Shares and other property remaining in the Escrow Fund and not required to satisfy such claims. Deliveries of Escrow Cash and Escrow Shares to the stockholders of Target pursuant to this Section 8.5 and the Escrow Agreement shall be made in proportion to their respective original contributions to the Escrow Fund.

Escrow Period. Distribution upon the First and Second Escrow Release Dates. Subject to the requirements set forth in this Section 7.2(b)following requirements, the Escrow Fund shall remain be in existence immediately following the Closing Time and shall terminate at 5:00 p.m., California Time local time, on the Second Escrow Release first business day after the thirtieth (30th) day after the Survival Date (as defined belowthe “Escrow Period”). As used herein "First ; provided that the Escrow Release Date" Period shall mean not terminate with respect to the earlier aggregate amount of Losses (the “Withheld Funds”) (i) the date thirty (30) days after the date of delivery by BackWeb Parent's independent auditors to BackWeb Parent of signed, audited consolidated financial statements for the BackWeb Parent fiscal year ended December 31, 1997 and (ii) May 1, 1998. BackWeb Parent shall notify the Escrow Agent in writing of the establishment of the First Release Date. As used herein "Second Escrow Release Date" shall mean the date being six months after the First Escrow Release Date. The First Escrow Release Date and the Second Escrow Release Date are referred to herein collectively as the "Escrow Release Dates." On the First Escrow Release Date, a portion of the Escrow Fund shall be released from escrow to the Holders in Escrow as reasonably practicable in proportion to their respective Proportionate Escrow Interest in an amount equal to one half of the entire Escrow Amount, less any Holdover Amount (as defined below). On the Second Escrow Release Date, a portion of the Escrow Fund shall be released from escrow to the Holders in Escrow as reasonably practicable in proportion to their respective Proportionate Escrow Interest in an amount equal to the entire Escrow Amount then remaining in the Escrow Fund less any Holdover Amount. As soon as all claims relating to a Holdover Amount have been resolved, the Escrow Agent shall deliver to the appropriate Holders in Escrow the remaining portion of the Escrow Fund not required to satisfy such claims and the Escrow Fund shall be terminated. Deliveries of Escrow Amounts from the Escrow Fund to the Holders in Escrow pursuant to this Section 7.2(b) shall be made in proportion to their respective Proportionate Escrow Interest as reasonably practicable. As used herein "Holdover Amount" shall mean (y) any amounts previously returned for cancellation to the Surviving Corporation including, without limitation, such amounts returned pursuant to Section 1.7 of this Agreement and (z) any additional amount which, in the reasonable judgment of BackWeb Parent, subject to the objection of the Agent and subsequent arbitration of the matter in the manner provided in Section 7.2(e) hereof, is necessary to satisfy any unsatisfied claims specified in any Officer's ’s Certificate delivered to the Escrow Agent prior to the applicable termination of the Escrow Release Period and (ii) for which indemnification in full has not been received pursuant to this ARTICLE 8 in satisfaction thereof (such Losses being referred to as “Unsatisfied Losses”). It is agreed between the parties that a sum of US$1,000,000 of the Escrow Amount shall be dedicated solely for the payment of any Taxes of the Company Subsidiaries (other than the Additional Sellers) due for the period beginning January 1, 2005 and ending at the Closing which have not been paid as of the Closing and which shall be paid by the Buyers after the Closing (the “Tax Escrow”). Buyer shall use commercially reasonable efforts to mitigate any Tax Liability of a Company Subsidiary relating to periods prior to the Closing, and shall consult with the Company in good faith prior to entering into any arrangement or agreement with any Governmental Authority with respect to such matter. The Tax Escrow shall be in existence immediately following the Closing and shall terminate on the first anniversary of the Closing Date (which amount “Tax Escrow Survival Date”). In the event that on the Tax Escrow Survival Date, any funds shall remain in escrow out of the Tax Escrow, then such remaining funds shall be released to the Company promptly following the Tax Escrow Survival Date. In the event that the Tax Escrow is not sufficient to allow for the payment of all such Taxes, then any such Taxes in excess of the Tax Escrow shall be paid as follows: (i) 80% shall be borne by the Company by way of release of funds from the Escrow Fund until such claims have been resolvedAmount to the Buyer, and (ii) 20% shall be paid by the Buyer (or a Buyer Affiliate). If any Holdover Amount shall exist on the Second Escrow Release DateCompany, such Holdover Amount shall cause by written notice to Buyer and the Escrow Fund Agent within thirty (30) days of the termination of the Escrow Period (it being understood that any contest relating to remain any Officer’s Certificate must be made within thirty (30) days of delivery of such Officer’s Certificate), contests Buyers’ determination of the existence or value of such Losses, the existence or value of such Losses shall be finally determined pursuant to the procedures set forth in existence until such claims have been resolvedSection 8.2(i) hereof.

Escrow Period. Distribution upon the First and Second Escrow Release Dates. Subject to the requirements set forth in this Section 7.2(b), the The Warranty Escrow Fund shall remain in existence immediately following until the Closing Time and Initial Escrow Termination Date. The Warranty Escrow Property remaining in the Warranty Escrow Fund at the Initial Escrow Termination Date shall terminate at 5:00 p.m.be paid to the Escrow Selling Stockholders, California Time on the Second Escrow Release Date (as defined below). As used herein "First Escrow Release Date" shall mean the earlier of except for (i) the date thirty amount of any bona fide claim for Damages outstanding as of such date, 70% of which amount shall be cash in U.S. dollars based on the Applicable Exchange Rate as of the Initial Escrow Termination Date and 30% of which amount shall be shares of Acquiror Stock based on the Closing Average Stock Price (30the “Outstanding Claims Reserve”) days after the date of delivery by BackWeb Parent's independent auditors to BackWeb Parent of signed, audited consolidated financial statements for the BackWeb Parent fiscal year ended December 31, 1997 and (ii) May 1an amount of cash equal to US$100,000 for potential Tax Damages arising during the indemnification period for Taxes remaining after the Initial Escrow Termination Date (the “Tax Escrow Fund” and together with the Outstanding Claims Reserve, 1998the “Special Reserve Escrow Fund”). BackWeb Parent Any balance of the Special Reserve Escrow Fund remaining at the expiration of the Final Escrow Termination Date shall notify be paid to the Escrow Agent Selling Stockholders, except for the amount of any bona fide claim for Damages outstanding as of such date, 70% of which amount shall be cash in writing U.S. dollars based on the Applicable Exchange Rate as of the establishment of the First Release Date. As used herein "Second Final Escrow Release Date" shall mean the date being six months after the First Escrow Release Date. The First Escrow Release Termination Date and the Second Escrow Release Date are referred to herein collectively as the "Escrow Release Dates." On the First Escrow Release Date, a portion 30% of the Escrow Fund which amount shall be released from escrow to shares of Acquiror Stock based on the Holders in Escrow as reasonably practicable in proportion to their respective Proportionate Escrow Interest in an Closing Average Stock Price, which amount equal to one half of the entire Escrow Amount, less any Holdover Amount (as defined below). On the Second Escrow Release Date, a portion of the Escrow Fund shall not be released from escrow to until final resolution of such claims (the Holders in “Escrow as reasonably practicable in proportion to their respective Proportionate Escrow Interest in an amount equal to the entire Escrow Amount then remaining in the Escrow Fund less any Holdover AmountPeriod”). As soon as all such claims relating to a Holdover Amount have been resolved, the Escrow Agent shall deliver to the appropriate Holders Escrow Selling Stockholders all property remaining in Escrow the remaining portion of the Warranty Escrow Fund and not required to satisfy such claims and the Escrow Fund shall be terminatedclaims. Deliveries of Warranty Escrow Amounts from Property to the Escrow Fund to the Holders in Escrow Selling Stockholders pursuant to this Section 7.2(b) 9.5 and the Escrow Agreement shall be made in proportion to their respective Proportionate Escrow Interest proportionate amounts of cash and share as reasonably practicabledescribed in Section 1.6(e). As used herein "Holdover Amount" shall mean (y) any amounts previously returned for cancellation to In the Surviving Corporation including, without limitation, such amounts returned pursuant to Section 1.7 of this Agreement and (z) any additional amount which, event that there is not sufficient cash remaining in the reasonable judgment of BackWeb Parent, subject to the objection of the Agent and subsequent arbitration of the matter in the manner provided in Section 7.2(e) hereof, is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate delivered to the Escrow Agent prior to the applicable Escrow Release Date (which amount shall remain in the Escrow Fund until such claims have been resolved). If any Holdover Amount shall exist on the Second Escrow Release Date, such Holdover Amount shall cause the Warranty Escrow Fund to remain satisfy the foregoing requirements of this Section 9.5, then such remaining cash will be applied first and the balance shall be in existence until such claims have been resolvedshares of Acquiror Stock.