Common use of Escrow Amount Clause in Contracts

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 this Agreement, in connection with any payment hereunder, Parent shall withhold from the shares issued to the Rollover Stockholders pursuant to Section 1.1 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 holders’ Pro Rata Share of the Escrow Amount 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, which is a fraction whose numerator is the aggregate Merger Consideration payable to such holder as set forth in the Payment Spreadsheet, and whose denominator is $11,308,650. When calculating the Rollover Stockholders’ initial Pro Rata Share of the Escrow Fund, the value of the Escrow Shares shall be $750,245 for Xxxxxx Xxxxx and $150,000 for Xxxx Xxxx. 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 shall be withheld first from shares of Parent Common Stock issued pursuant to Section 1.1. If the value of such withheld shares (which shall be valued at $5.99 per share) is insufficient to provide for the Rollover Stockholders’ Pro Rata Share of the Escrow Amount, then and only to the 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 consisting of cash and shares to be deposited with the Escrow Agent and the 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, 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.

Escrow Amount. In connection with, and upon, the final payment of consideration under the Merger Agreement, Purchaser shall deposit with the Stock Exchange and the Merger, ParentEscrow Agent an aggregate of (i) $118,071.10 in immediately available funds (together with any proceeds thereof, the Stockholders’ Agent, Continental Stock Transfer and Trust Company (the “Cash Escrow AgentAmount”) and (ii) stock certificates representing an aggregate of 61,500 shares of the Signing Stockholders, individually, are entering into the escrow agreement non-voting common stock of Purchaser issued in the form attached hereto as Exhibit C names of the stockholders of the Company set forth on Schedule 1 to this Agreement (each, a “Stockholder” and collectively, the “Escrow AgreementStockholders”). Notwithstanding anything to , such certificates representing the contrary number of shares of common stock of Purchaser set forth in this Agreementopposite each such Stockholder’s name on Schedule 1 (collectively, in connection with any payment hereunder, Parent shall withhold from the shares issued to the Rollover Stockholders pursuant to Section 1.1 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” and, together with the Cash Escrow Amount, the “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 an amount equal to such holders’ Pro Rata Share favor of Purchaser, allowing for the Escrow Amount as set forth on the Payment Spreadsheet. For purposes transfer of the foregoing, each such Stockholder’s, holder of Stock Options or holder of Warrants “Pro Rata Share” shall be equal ’s Escrow Shares to such holders initial Escrow Percentage as set forth on the Payment Spreadsheet, which is a fraction whose numerator is the aggregate Merger Consideration payable to such holder as set forth Purchaser in the Payment Spreadsheetevent, and whose denominator only in the event, that Purchaser is $11,308,650entitled to receive any or all of such Escrow Shares pursuant to the terms hereof. When calculating the Rollover The Stockholders’ initial Pro Rata Share of the Escrow Fund, the value of the Escrow Shares shall be $750,245 for Xxxxxx Xxxxx and $150,000 for Xxxx Xxxx. 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 shall be withheld first from shares of Parent Common Stock issued pursuant to Section 1.1. If the value of such withheld shares (which shall be valued at $5.99 per share) is insufficient to provide for the Rollover Stockholders’ Pro Rata Share of the Escrow Amount, then and only to the 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 Representative shall cause the Escrow Amount consisting of cash and shares Stock Powers that are provided to the Stockholders’ Representative to be deposited with the Escrow Agent and within ten (10) days following the date of this Agreement. The certificates representing the Escrow Agent shall hold Shares will be legended to reflect the deposit of 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 Shares under Article 8 and for purposes of paying any Adjustment Amount pursuant to Section 1.7(h)(iii)this Agreement. All income and gains earned on the Escrow Fund Such legend 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 removed upon disbursement 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, 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 purposesShares, 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 distributeddescribed in Section 5 hereof.

Escrow Amount. In connection At the Closing, an amount in cash equal to $25,000,000 of the Closing Merger Consideration (the “Escrow Amount”) will be withheld and deposited by Parent in a separate account (the “Escrow Account”) with the Stock Exchange and the MergerJPMorgan Chase Bank, Parent, the Stockholders’ Agent, Continental Stock Transfer and Trust Company NA (the “Escrow Agent”) ). The Escrow Amount will be held and the Signing Stockholders, individually, are entering into the escrow agreement distributed as provided in the form attached hereto Escrow Agreement and as Exhibit C (described herein. The Escrow Amount will be held solely for the “Escrow Agreement”). Notwithstanding anything to purpose of securing the contrary post-Closing obligations of the Company Securityholders set forth in this Agreement, in connection with Agreement (including the indemnification obligations of the Company Securityholders) and making any payment hereunder, payments owed to Parent shall withhold from or the shares issued to the Rollover Stockholders other Indemnified Persons pursuant to Section 1.1 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 holders’ Pro Rata Share of the Escrow Amount 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, which is a fraction whose numerator is the aggregate Merger Consideration payable to such holder as set forth in the Payment Spreadsheet, and whose denominator is $11,308,650. When calculating the Rollover Stockholders’ initial Pro Rata Share of the Escrow Fund, the value of the Escrow Shares shall be $750,245 for Xxxxxx Xxxxx and $150,000 for Xxxx Xxxx. 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 . Subject 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 shall be withheld first from shares of Parent Common Stock issued pursuant to Section 1.1. If the value of such withheld shares (which shall be valued at $5.99 per share) is insufficient to provide for the Rollover Stockholders’ Pro Rata Share of the Escrow Amount, then and only a reserve to the extent of such insufficiency shall cash otherwise payable to any pending claims, the Rollover Stockholders in respect terms and conditions 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 consisting of cash and shares to be deposited with the Escrow Agent this Agreement and the Escrow Agent shall hold such shares in its vault and such cash in an interest bearing escrow account (collectivelyAgreement, the shares and cash, the “Escrow Fund”) as security Agreement will provide for the indemnification obligations under Article 8 and for purposes release of paying any Adjustment Amount pursuant to Section 1.7(h)(iii). All income and gains earned amounts remaining in the Escrow Account on the 18-month anniversary of the Closing; provided, however, that no amounts subject to unresolved claims will be released until such claims are resolved. Any release and payment of amounts remaining in the Escrow Fund shall Account to Company Securityholders will be included by Parent made in accordance with the Closing Consideration Spreadsheet, as taxable income or loss updated in accordance with this Agreement. Each of Parent and the Escrow Agreement shall provide for Company will pay 50% of all fees, costs and expenses of the Escrow Agent with respect to make quarterly distributions to Parent equal to forty percent (40%) the Escrow Account. All fees, costs and expenses of the taxable income recognized on Paying Agent with respect to the Exchange Fund, will be paid by Parent. The Escrow Amount will be held by the Escrow Fund in such quarter Agent under the Escrow Agreement pursuant to satisfy any tax obligations that may arise the terms thereof. The Escrow Amount will be held as a result of such income trust fund and gains being attributed to Parent. Any income and gains of the Escrow Fund shall will not be available to Parent as part of the Escrow Fund, but if not paid to Parent in connection with the indemnification obligations owed subject to any Parent Indemniteelien, attachment, trustee process or paid to Parent to cover Taxesany other judicial process of any creditor of any party, shall ultimately and will be distributable to held and disbursed solely for the Stockholders, holders of Stock Options purposes and holders of Warrants in accordance with the terms of this Agreement and the Escrow Agreement. The parties acknowledge approval of this Agreement and agree that any amounts (whether principal or income and gains on principal earned during the term of the Escrow Fund) distributed Merger by the Escrow Agent from the Escrow Fund to the Stockholders, holders of Stock Options and holders of Warrants pursuant to the terms Company Securityholders will constitute approval of the Escrow Agreement shall be treatedand of all of the arrangements relating thereto, for U.S. federal income tax purposes, as additional consideration paid to including the Stockholders, holders placement of Stock Options and holders of Warrants for their shares pursuant to the Stock Exchange and the Merger as and when that amount is distributedEscrow Amount in escrow.

Escrow Amount. In connection Notwithstanding anything to the contrary contained in this Agreement, (i) an amount in cash equal to the Adjustment Escrow Amount shall not be paid to the Company Securityholders at the Effective Time, but shall instead be withheld in accordance with each Company Securityholder’s Closing Pro Rata Share of the Stock Exchange Adjustment Escrow Amount and the Mergerdeposited with PNC Bank, Parent, the Stockholders’ Agent, Continental Stock Transfer and Trust Company National Association (the “Escrow Agent”) and (ii) an amount in cash (such amount, the Signing Stockholders, individually, are entering into the escrow agreement in the form attached hereto as Exhibit C “Indemnity Escrow Cash”) and shares of Acquirer Common Stock (the “Escrow Agreement”). Notwithstanding anything to the contrary set forth in this Agreement, in connection with any payment hereunder, Parent shall withhold from the shares issued to the Rollover Stockholders pursuant to Section 1.1 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 “Indemnity Escrow Shares”) in with an amount aggregate value equal to the Indemnity Escrow Amount (with such holders’ shares of Acquirer Common Stock valued at the Closing Acquirer Stock Price) shall not be paid to the Company Securityholders at the Effective Time, but shall instead be withheld in accordance with each Company Securityholder’s Closing Pro Rata Share of the Indemnity Escrow Amount 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, which is a fraction whose numerator is the aggregate Merger Consideration payable to such holder as set forth in the Payment Spreadsheet, and whose denominator is $11,308,650. When calculating the Rollover Stockholders’ initial Pro Rata Share of the Escrow Fund, the value of the Escrow Shares shall be $750,245 for Xxxxxx Xxxxx and $150,000 for Xxxx Xxxx. 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 each Company Securityholder contributing a pro rata amount from time to time). Amounts to be withheld in respect of the Rollover Stockholders’ Pro Rata Share of the Escrow Amount shall be withheld first from shares of Parent Common Stock issued pursuant to Section 1.1. If the value of such withheld shares (which shall be valued at $5.99 per share) is insufficient to provide for the Rollover Stockholders’ Pro Rata Share of the Escrow Amount, then and only to the 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 consisting of cash and shares of Acquirer Common Stock (valued at the Closing Acquirer Stock Price) in proportion to be the cash and Acquirer Common Stock payable to such Company Securityholder pursuant to Sections 1.3(a)(i)(A), 1.3(a)(ii)(A), 1.3(a)(iii)(A), 1.3(a)(iv)(A) and 1.3(a)(v)(A) prior to giving effect to this Sections 1.3(a)(v) and 1.3(c)) and deposited with the Escrow Agent Agent. The Adjustment Escrow Funds and the Indemnity Escrow Agent shall hold such shares Funds will be held in its vault and such cash in an interest bearing escrow account segregated accounts (collectively, the shares and cash, the “Escrow FundAccount”) 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 governed 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 subject to the Stockholders, holders terms of Stock Options and holders of Warrants in accordance with this Agreement and the Escrow Agreement. The parties acknowledge Adjustment Escrow Funds and agree that Indemnity Escrow Funds shall be available for the benefit of Acquirer to satisfy any amounts (whether principal or income adjustment made in Acquirer’s favor pursuant to Section 1.6 and gains on principal earned during the term of the Indemnity Escrow Fund) distributed Funds shall also be available to satisfy any indemnification claims made by the Escrow Agent from the Escrow Fund Acquirer Indemnified Parties pursuant to the StockholdersArticle VIII, holders of Stock Options in each case, in accordance with and holders of Warrants pursuant subject to the terms of this Agreement, and shall be distributed in accordance with this Agreement. The adoption of this Agreement and the approval of the Transactions by the Company Stockholders shall constitute, among other things, approval of the Escrow Funds and the withholding of and the deposit with the Escrow Agent of the applicable Closing Pro Rata Share of the Escrow Amount from each Company Securityholder by Acquirer. No portion of the Escrow Funds (or any beneficial interest therein) may be pledged, subjected to any Encumbrance, sold, assigned or transferred by any Company Securityholder or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability of any Company Securityholder, in each case, prior to the distribution of such portion of the Escrow Funds to such Company Securityholder in accordance with Section 1.6 or Article VIII, as applicable, if any. The Company Securityholders shall have no right to vote the Indemnity Escrow Shares, and any dividends paid in respect of the Indemnity Escrow Shares shall be added to the Indemnity Escrow Funds (and not paid directly to the Company Securityholders at the time of payment of such dividend but shall instead be deposited in the Escrow Account and released in accordance with the Escrow Agreement). The parties hereto agree that, for Tax purposes only, Acquirer is the owner of the Escrow Funds and that all interest on or other taxable income, if any, earned from the investment of cash in the Escrow Funds pursuant to this Agreement shall be treated, treated for U.S. federal income tax purposes, 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 distributedearned by Acquirer.

Escrow Amount. In At the Closing, as security for the general obligations of 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 the 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 Stock Exchange Merger) to NBD Bank, as escrow agent (the "Escrow Agent"), to be deposited and held in and released from escrow pursuant to the MergerEscrow Agreement to be entered into at the Closing, Parentand shall be deposited and held in escrow pursuant to the provisions of the Escrow Agreement until May 31, 1999. Subject to the foregoing, the Stockholders’ Agent, Continental Stock Transfer mix of Merger Securities and Trust Company (the “Escrow Agent”) and the Signing Stockholders, individually, are entering into the escrow agreement Cash Component in the form attached hereto as Exhibit C (the “Escrow Agreement”). Notwithstanding anything Account shall be identical to the contrary set forth mix of Merger Securities and Cash Component payable to the Significant Target Shareholders, in this Agreementthe aggregate, in connection with any payment hereunderthe Merger, Parent or as Acquiror and each Significant Target Shareholder shall withhold from the shares issued to the Rollover Stockholders pursuant to Section 1.1 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 holders’ Pro Rata Share of the Escrow Amount as set forth on the Payment Spreadsheetagree. For purposes of the foregoingthis Section, each such Stockholder’s, holder share of Acquiror Common Stock Options or holder of Warrants “Pro Rata Share” shall be deemed to have a value equal to such holders initial Escrow Percentage as set forth the closing price of Acquiror Common Stock on the Payment Spreadsheet, which is a fraction whose numerator is the aggregate Merger Consideration payable to such holder as set forth in the Payment Spreadsheet, and whose denominator is $11,308,650. When calculating the Rollover Stockholders’ initial Pro Rata Share of the Escrow Fund, the value of the Escrow Shares shall be $750,245 for Xxxxxx Xxxxx and $150,000 for Xxxx Xxxx. 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 shall be withheld first from shares of Parent Common Stock issued pursuant to Section 1.1. If the value of such withheld shares (which shall be valued at $5.99 per share) is insufficient to provide for the Rollover Stockholders’ Pro Rata Share of the Escrow Amount, then and only to the 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 consisting of cash and shares to be deposited with the Escrow Agent and the 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 NASDAQ on the Escrow Fund shall be included by Parent as taxable income or loss of Parent and day immediately preceding 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, 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 distributedClosing Date.

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 AgreementArticle I, in connection with any payment hereunder, Parent Acquirer shall withhold from each Converting Holder’s applicable portion of the shares issued Merger Consideration payable and issuable to the Rollover Stockholders such Converting Holder pursuant to Section 1.1 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(b1.3(a) 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 holders’ Converting Holder’s 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, which is a fraction whose numerator is the aggregate Merger Consideration payable to such holder as set forth in the Payment Spreadsheet, it being understood and whose denominator is $11,308,650. When calculating the Rollover Stockholders’ initial agreed that Unaccredited Stockholders shall first contribute cash and all other Converting Holders shall contribute their Pro Rata Share of the Escrow Fund, the value remainder of the Escrow Shares shall be $750,245 for Xxxxxx Xxxxx and $150,000 for Xxxx Xxxx. For purposes of the foregoing, “Escrow Amount” shall initially mean $1,800,000 (with references to the Escrow Amount in this Agreementcash and shares of Acquirer Common Stock), 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 and shall deposit the Escrow Amount shall be withheld first from shares of Parent Common Stock issued with the Escrow Agent pursuant to Section 1.18.1. If The cash and shares of Acquirer Common Stock deposited into the value Escrow Fund shall, to the maximum extent possible, consist of such withheld vested cash and vested shares of Acquirer Common Stock. The Escrow Fund shall constitute partial security for the benefit of Acquirer (which 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 valued at $5.99 per shareheld and distributed in accordance with Section 1.6(i) is insufficient to provide for and Section 8.1. The adoption of this Agreement and the Rollover Stockholders’ Pro Rata Share approval of the principal terms of the Merger by the Company Stockholders shall constitute, among other things, approval of the Escrow Amount, then and only to the 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 withholding of the Escrow Amount. Promptly following the Effective Time, Parent shall cause the Escrow Amount consisting of cash and shares to be deposited with the Escrow Agent by Acquirer and the 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%) appointment 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, 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’ Agent.