Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge and the Custodian contesting all or a portion of a Notice of Claim (a "Contested Claim") within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge or Excell in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge on the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian that a Notice of Claim is contested by the Indemnification Representative, then the Custodian shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall at the same time provide a copy of the Cambridge Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 2 contracts
Sources: Escrow Agreement (Cambridge Technology Partners Massachusetts Inc), Escrow Agreement (Cambridge Technology Partners Massachusetts Inc)
Contested Claims. In the event that the Indemnification ---------------- Representative Holder gives written notice to Cambridge Merilus USA and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested Claim") within the 30-day --------------- period provided above, matters relating to such Contested Claim that are subject to third party claims against Cambridge Merilus USA or Excell Merilus Canada in a litigation or arbitration shall will await the final decision, award or settlement of such litigation or arbitration, while matters relating to such Contested Claim that arise between Cambridge Merilus USA on the one hand and Excell Merilus Canada and/or the Holders Holder on the other hand, including any disputes regarding breach of representations and warranties or performance or nonperformance of a party's obligations under this Escrow the Reorganization Agreement ("Arbitrable Claims"), ----------------- shall ) will be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Merilus USA and the Indemnification Representative shall Holder will be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification RepresentativeHolder, then the Custodian shall Escrow Agent will hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the 140 number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: :
(i) receipt of a settlement agreement executed by Cambridge Merilus USA and the Indemnification Representative Holder setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) ;
a. receipt of a written notice from Cambridge Merilus USA (a "Cambridge Merilus Usa Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall Merilus USA will at the same time provide a copy of the Cambridge Merilus USA Distribution Notice to the Indemnification RepresentativeHolder); or (iii) or
b. receipt of a written notice from the Indemnification Representative Holder (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall Holder will at the same time provide a copy of the Representative Distribution Notice to CambridgeMerilus USA). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shallEscrow Agent will, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Merilus USA Distribution Notice, as applicable, ,
(a) release to Cambridge Merilus USA of that portion of the number of Escrow Shares Fund specified in the Escrow Adjustments and and
(b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders Holder the balance of the Escrow SharesFund. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shallEscrow Agent will, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders Holder the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall Fund will continue to be held pursuant to the terms of this Escrow Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Golden Soil Inc), Agreement and Plan of Reorganization (Golden Soil Inc)
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested ClaimCONTESTED CLAIM") within the 30-day --------------- period provided aboveFirst Notice Period, matters that are subject to third party claims against Cambridge Parent or Excell INT'▇.▇▇▇ in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge Parent on the one hand and Excell INT'▇.▇▇▇ and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable ClaimsARBITRABLE CLAIMS"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares as specified in the Release Notice as Retained Escrow (as defined in Section 3.1) or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Distribution NoticePARENT DISTRIBUTION NOTICE") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution NoticeREPRESENTATIVE DISTRIBUTION NOTICE") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Parent Distribution Notice as the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow SharesShares and the related stock transfer powers. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained balance of the Escrow (as defined in Section 3.1)Shares and the related stock transfer powers, pro rata in accordance with the Holders' interests thereinEXHIBIT 1.1, provided that PROVIDED THAT if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either Parent in satisfaction of Damages or as and Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares (determining value as provided in the penultimate sentence of Section 2.1 above, and in any event, subject to the first sentence of such Section 2.1) to be so released to Cambridge Parent either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 2 contracts
Sources: Escrow Agreement (Lionbridge Technologies Inc /De/), Escrow Agreement (Jeanty Roger O)
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim within the 30-day period provided above (a "Contested Claim"), (i) within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge --------------- Parent or Excell Opal in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitrationarbitration the time for appeal having passed, while and (ii) matters that arise between Cambridge Parent on the one hand hand, and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable ---------- Claims"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Parent and ------ Indemnification Representative shall certify in writing to the Escrow Agent whether a Contested Claim is an Arbitrable Claim, and is thus subject to Section 2.3(c). The Parent and Indemnification Representative agree that any Arbitrable Claim is between the Parent and Indemnification Representative, the Escrow Agent shall not be a party to any Arbitrable Claim, and shall have no duty or obligation to monitor or enforce the provisions of Section 2.3(c) hereof, including without limitation any payment of costs pursuant to Section 2.3(c)(iv), or to determine whether a Contested Claim is an Arbitrable Claim. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested in whole or in part by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice (as defined in Section 3.1 below) or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Parent ------ Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the an ------------------- arbitrator under paragraph (c) below and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") ---------------------------------- attaching a copy of the final award or ----------------------------------- decision of an arbitrator under paragraph (c) below setting forth the arbitrator Escrow Adjustments or providing that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If Upon the earliest occurrence of any of the three events described in the preceding sentence is (i) or (ii)sentence, the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the settlement agreement or one of the Cambridge Distribution Noticenotices described in clauses (ii) or (iii) above, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or findingDate
1. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 2 contracts
Sources: Escrow Agreement (Transwitch Corp /De), Escrow Agreement (Transwitch Corp /De)
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested CONTESTED Claim") within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge Parent or Excell Calogic in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge Parent on the one hand and Excell Calogic and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable ClaimsARBITRABLE CLAIMS"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share Parent Average Closing Price notwithstanding any change in the market value of Cambridge Parent Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Distribution NoticePARENT DISTRIBUTION NOTICE") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution NoticeREPRESENTATIVE DISTRIBUTION NOTICE") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow SharesShares and the related stock transfer powers. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge Parent either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Sources: Escrow Agreement (Sipex Corp)
Contested Claims. In If the event that the Indemnification ---------------- Representative gives Shareholders give written notice to Cambridge and the Custodian contesting all or a portion of a Notice of Claim to DPRC and the Escrow Agent (a "Contested Claim") within the 3020-day --------------- period provided above, matters that are subject to third party claims Claims brought against Cambridge DPRC or Excell the Shareholders in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge DPRC on the one hand and Excell and/or the Holders Shareholders on the other hand, including any disputes regarding performance or nonperformance non-performance of a party's obligations under this Escrow Agreement ("Arbitrable Disputed Claims"), ----------------- ) shall be settled in accordance with Section 2.3(c) 3.4(c), below. Any portion of a the Notice of Claim that is not contested or is subsequently settled by Cambridge and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a3.4(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Sharesabove. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification RepresentativeShareholders, then the Custodian Escrow Agent shall hold hereunder in the Escrow Account, after what would otherwise be the Final Release Date Date, Escrowed Shares having a value (determined pursuant to Section 2.2, above, as defined of the Final Release Date) sufficient to cover Damages alleged in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until such Claim and to the earlier of: of (i) receipt of a settlement agreement executed by Cambridge DPRC and the Indemnification Representative Shareholders setting forth a the resolution of the Notice of Claim and setting forth the Escrow Adjustments; number of Escrowed Shares, if any, to be released to DPRC, or (ii) receipt of a written notice from Cambridge DPRC (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall at the same time provide a copy of the Cambridge Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative DPRC Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are Arbitrator and setting forth the number of Escrowed Shares, if any, to be made released to DPRC as a result of such award (the Indemnification Representative DPRC shall at the same time provide a copy of the Representative DPRC Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments and (b) Shareholders; if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has award does not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Escrowed Shares to be so released released, the Shareholders shall have 20 calendar days to Cambridge either object to the calculation of the number of Escrowed Shares to be released, but not to the award itself; in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent receives any such objection within such 20-day period, the Escrow Agent shall be entitled to require that the matter be resolved by a notice from both DPRC and the Shareholders or by a clarification of the award.) If the Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute or, if the parties are unable to agree, pursuant to this Section 2.3(b3.4(b) and Section 2.3(c3.4(c).
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Buyer and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested ClaimCONTESTED CLAIM") within the 30-day --------------- period provided above, matters relating to such Contested Claim that are subject to third party claims against Cambridge Buyer or Excell the Company in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters relating to such Contested Claim that arise between Cambridge Buyer on the one hand and Excell the Company and/or the Holders on the other hand, including any disputes regarding breach of representations and warranties or performance or nonperformance of a party's obligations under this Escrow the Agreement ("Arbitrable ClaimsARBITRABLE CLAIMS"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Buyer and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Buyer and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Buyer (a "Cambridge Distribution NoticeBUYER DISTRIBUTION NOTICE") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge Buyer shall at the same time provide a copy of the Cambridge Buyer Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution NoticeREPRESENTATIVE DISTRIBUTION NOTICE") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeBuyer). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Buyer Distribution Notice, as applicable, (a) release to Cambridge Buyer of that portion of the number of Escrow Shares Fund specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow SharesFund. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares Fund shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Sources: Escrow Agreement (Teradyne Inc)
Contested Claims. In the event that the Indemnification ---------------- Representative Representative, or in the case of an Individual Claim, the applicable Worldprints Shareholder, gives Excite@Home written notice to Cambridge and the Custodian contesting all or a any portion of a Notice of Claim (a "Contested Claim") within the 30-thirty day --------------- period provided abovespecified in Section 11.8(a), matters that are subject to third party claims against Cambridge then such Contested Claim will be resolved by either (A) a written settlement agreement executed by Excite@Home and the Representative in the case of a Representative Claim, or Excell Excite@Home and the applicable Worldprints Shareholder in a litigation the case of an Individual Claim, or arbitration shall await (B) in the final decision, award or settlement absence of such litigation or arbitrationa written settlement agreement, while matters that arise by binding arbitration between Cambridge on Excite@Home and the one hand and Excell and/or Representative in the Holders on the other hand, including any disputes regarding performance or nonperformance case of a party's obligations under this Escrow Agreement ("Arbitrable Claims")Representative Claim, ----------------- shall be settled or Excite@Home and the applicable Worldprints Shareholder in the case of an Individual Claim, in accordance with the terms and provisions of Section 2.3(c) below11.8(c). Any Upon receipt by Excite@Home of written notice contesting all or any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge and the Indemnification Representative Claim, it shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of transmit stock certificates representing Escrow Shares shall equal in value to the Deemed Value Per Cambridge Share notwithstanding any change amount of Damages asserted in the market value of Cambridge Common Shares. If written notice is received by the Custodian that a Notice of Claim is contested by the Indemnification Representative, then the Custodian shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge and the Indemnification Representative setting forth a resolution of the Notice of Claim (such Escrow Shares to be valued in accordance with Section 11.3) to a third-party escrow agent mutually acceptable to Excite@Home and the Representative (if Excite@Home and the Representative cannot agree within five business days on a third-party escrow agent, then such escrow agent shall be Chase Manhattan Bank and Trust Company National Association) (the "Escrow Adjustments; (ii) receipt of a written notice from Cambridge (a "Cambridge Distribution NoticeAgent") attaching and the parties to this Agreement will, at such time, enter into a ----------------------------- copy of the final award or decision of the arbitrator customary and setting forth reasonable escrow agreement, if any, required and provided by the Escrow Adjustments (Cambridge shall at Agent, governing the same time provide a copy of the Cambridge Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance terms of the Escrow SharesAgent's service. If the earliest With respect to any of the three events described above is (iii) and Escrow Shares held by the Release Date has occurred, and there are no remaining unresolved Contested ClaimsEscrow Agent, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, Escrow Agent will hold and release to the Holders the Retained Escrow (as defined in Section 3.1), shares in accordance with the Holders' interests therein, provided that if the Release Date has not occurred procedures set forth in Section 2.5 of this Agreement and this Article 11. Any fees or expenses charged by the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either Agent in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance connection with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute its service pursuant to this Section 2.3(b) and Section 2.3(c)Agreement shall be paid by Excite@Home.
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Sources: Agreement and Plan of Reorganization (At Home Corp)
Contested Claims. In the event that the Indemnification ---------------- Representative Holder gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "“Contested Claim"”) within the 30-day --------------- period provided above, (i) matters that are subject to third party claims against Cambridge Parent or Excell DJCE in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while and (ii) matters that arise between Cambridge Parent on the one hand hand, and Excell and/or the Holders DJCE on the other hand, including any disputes regarding performance or nonperformance of a party's ’s obligations under this Escrow Agreement ("“Arbitrable Claims"), ----------------- ”) shall be settled in accordance with Section 2.3(c) below. Parent and Holder shall certify in writing to the Escrow Agent whether a Contested Claim is an Arbitrable Claim, and is thus subject to Section 2.3(c). Parent and Holder agree that any Arbitrable Claim is between the Parent and Holder, and the Escrow Agent is not a party to any Arbitrable Claim, and shall have no duty or obligation to monitor or enforce the provisions of Section 2.3(c) hereof, including without limitation any payment of costs pursuant to Section 2.3(c)(iv), or to determine whether a Contested Claim is an Arbitrable Claim. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative Holder shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested in whole or in part by the Indemnification RepresentativeHolder, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative Holder setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge “Parent Distribution Notice"”) attaching a ----------------------------- copy of the final award or decision of the an arbitrator under paragraph (c) below and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification RepresentativeHolder); or (iii) receipt of a written notice from the Indemnification Representative Holder (a "Representative “Holder Distribution Notice"”) attaching a copy of the final award or ----------------------------------- decision of the an arbitrator under paragraph (c) below that no Escrow Adjustments are to be made as a result of such award Notice of Claim (the Indemnification Representative Holder shall at the same time provide a copy of the Representative Holder Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders Holder the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the Representative Holder Distribution Notice, release to the Holders Holder the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge Parent either in the arbitrator's ’s final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Representative gives Shareholders deliver to Purchaser and the Escrow Agent a written notice to Cambridge and the Custodian contesting all all, or a portion of of, a Notice of Claim (a "Contested ClaimCONTESTED CLAIM") and such written notice has been received by, or is deemed, under the provisions of Section 6 of this Agreement, to have been delivered to, Purchaser and the Escrow Agent within the 30-day --------------- ten (10) Business Day period provided abovedescribed in Section 4(a) of this Agreement, matters that are subject then: (i) such Contested Claim shall be resolved prior to third party claims against Cambridge the expiration of the Escrow Period, to the extent such timing is reasonably practicable, by either (A) a written settlement agreement executed by Purchaser and the Shareholders or Excell (B) in a litigation or arbitration shall await the final decision, award or settlement absence of such litigation or arbitrationa written settlement agreement, while matters that arise between Cambridge on the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance by final nonappealable order of a party's obligations under this court of competent jurisdiction directing delivery of the Indemnification Shares, in which event the Escrow Agreement ("Arbitrable Claims"), ----------------- Agent shall be settled disburse the Indemnification Shares in accordance with Section 2.3(c) belowsuch agreement or order. The Escrow Agent shall act on any such order or agreement without further question. Any portion of a the Notice of Claim that is not contested or is subsequently settled by Cambridge and the Indemnification Representative Shareholders in accordance with the foregoing provisions of this Section 4(b) shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian that a Notice of an Uncontested Claim is contested by the Indemnification Representative, then the Custodian shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall at the same time provide a copy of the Cambridge Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms Section 4(a) of this Agreement. Upon its receipt of a copy of such order or agreement, the Escrow Agent shall first permit the Shareholders, at the Shareholders' option, the opportunity to pay to Purchaser the amount of Losses (if any) that are owed to Purchaser in full in cash on or before the fifth (5th) Business Day after the Escrow Agent's receipt of a copy of such agreement or order. Immediately following Purchaser's receipt of payment of Losses from the Shareholders, Purchaser shall notify the Escrow Agent of such payment. If the award Escrow Agent does not receive written confirmation from Purchaser that such owed Losses have been paid in full in cash to Purchaser prior to the fifth (5th) Business Day after the Escrow Agent's receipt of a copy of such agreement or decision of order, then the arbitrator concludes Escrow Agent will (i) immediately release from escrow and transfer to Purchaser for cancellation that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Indemnification Shares to be so released to Cambridge either in the arbitrator's final award or decision or having a supplementary report or finding. In the event that the Custodian institutes an action for interpleader value (determined in accordance with Section 4.6 4(c) of this Escrow Agreement Agreement) equal to the amount of Losses (if any) owed to Purchaser, which transferred and forfeited Indemnification Shares shall be taken from and forfeited by each of the Shareholders in the manner set forth in Section 1(e) of this Agreement, and (ii) notify the Shareholders in writing of such transfer and forfeiture of Indemnification Shares as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c)promptly as reasonably practicable.
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested Claim") within the 30-day --------------- period provided above, (i) matters that are subject to third party claims against Cambridge Parent or Excell ADV in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while and (ii) matters that arise between Cambridge Parent on the one hand hand, and Excell ADV and/or the Holders on the other handhand regarding performance, including any disputes regarding non-performance and/or breach under and/or of the Share Purchase Agreement or nonperformance the Warranty Agreement shall be settled in accordance with Clause 9.1 of a party's obligations under this Escrow Agreement the Share Purchase Agreement, Clause 5 of the Warranty Agreement, and Section 2.3(c) below ("Arbitrable Claims"). If a Contested Claim exists, ----------------- Parent and ADV shall meet together between the fifth and the fifteenth Business Day following the date of the notice of the Contested Claim. If such meeting fails to produce an agreement within 30 days following such meeting, or if ADV fails to either (i) propose a date for such meeting, or (ii) fails to attend the meeting, then the Notice of Claim shall be settled deemed to have been accepted, unless ADV or the Indemnification Representative have provided a notice of request for Arbitration within such 30 day period from the date of the Notice of Claim. Parent and Indemnification Representative shall certify in accordance with writing to the Escrow Agent whether a Contested Claim is an Arbitrable Claim, and is thus subject to such provisions governing Arbitrable Claims. The Parent and Indemnification Representative agree that any Arbitrable Claim is between the Parent and Indemnification Representative and that the Escrow Agent is not a party to any Arbitrable Claim and shall have no duty or obligation to monitor or enforce the provisions of Clause 9.1 of the Share Purchase Agreement, Clause 5 of the Warranty Agreement, and Section 2.3(c) belowof this Agreement, including without limitation any payment of costs pursuant to Section 2.3(c)(iv), or to determine whether a Contested Claim is an Arbitrable Claim or claim pursuant to Clause 9.1 of the Share Purchase Agreement. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement settlement, if the escrow is funded with shares of Parent Common Stock, the value of Escrow Shares such Parent Common Stock shall equal be based upon the Deemed Value Per Cambridge Average Price as defined in the Share Purchase Agreement notwithstanding any change in the market value of Cambridge Parent Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested in whole or in part by the Indemnification Representative, then the Custodian Escrow Agent shall hold such Notice of Claim until the Escrow Funds are deposited on Deposit Date and shall then further hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), ) the number amount of Escrow Shares Funds specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Parent Distribution Notice") attaching a ----------------------------- copy of the final award or decision of an arbitrator under paragraph (c) below or Section 7.10 of the arbitrator Share Purchase Agreement and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of an arbitrator under paragraph (c) below, Clause 9.1 of the arbitrator Share Purchase Agreement, or Clause 5 of the Warranty Agreement that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If the earliest Upon any of the three events described in the preceding sentence is (i) or (ii)sentence, the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number amount of Escrow Shares Funds specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), Funds in accordance with the Holders' their percentage interests therein, provided that if the Release Date has not occurred which shall be certified in writing to the Escrow Shares shall continue to be held pursuant to Agent by the terms of this AgreementIndemnification Representative. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number amount of Escrow Shares Funds to be so released to Cambridge Parent either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested Claim") within the 30-day --------------- period provided above, (i) matters that are subject to third party claims against Cambridge Parent or Excell Easics in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while (ii) matters that arise between Cambridge Parent on the one hand hand, and Excell Easics and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims")) shall be settled in accordance ----------------- with Section 2.3(c) below, ----------------- and (iii) matters that arise between Parent on the one hand, and Easics and/or the Holders on the other hand regarding performance, non-performance and/or breach under and/or of the Exchange Agreement shall be settled in accordance with Clause 9.10 of the Exchange Agreement. Parent and Indemnification Representative shall certify in writing to the Escrow Agent whether a Contested Claim is an Arbitrable Claim, and is thus subject to Section 2.3(c). The Parent and Indemnification Representative agree that any Arbitrable Claim or claim pursuant to Clause 9.10 of the Exchange Agreement is between the Parent and Indemnification Representative, the Escrow Agent is not a party to any Arbitrable Claim or claim pursuant to Clause 9.10 of the Exchange Agreement, and shall have no duty or obligation to monitor or enforce the provisions of Clause 9.10 of the Exchange Agreement and Section 2.3(c) belowof this Agreement, including without limitation any payment of costs pursuant to Section 2.3(c)(iv), or to determine whether a Contested Claim is an Arbitrable Claim or claim pursuant to Clause 9.10 of the Exchange Agreement. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share last sale price of Parent Common Stock on the Closing Date notwithstanding any change in the market value of Cambridge Parent Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested in whole or in part by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Parent ------ Distribution Notice") attaching a ----------------------------- copy of the final award or decision of an ------------------- arbitrator under paragraph (c) below or Clause 9.10 of the arbitrator Exchange Agreement and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- ---------------------------------- decision of an arbitrator under paragraph (c) below or Clause 9.10 of the arbitrator Exchange Agreement that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow SharesShares in accordance with their percentage interests which shall be certified in writing to the Escrow Agent. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests thereintherein as certified in writing to the Escrow Agent, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge Parent either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "“Contested Claim"”) within the 30-day --------------- period provided above, (i) matters that are subject to third party claims against Cambridge Parent or Excell Mysticom in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while and (ii) matters that arise between Cambridge Parent on the one hand hand, and Excell Mysticom and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's ’s obligations under this Escrow Agreement ("“Arbitrable Claims"), ----------------- ”) shall be settled in accordance with Section 2.3(c) below. Parent and Indemnification Representative shall certify in writing to the Escrow Agent whether a Contested Claim is an Arbitrable Claim, and is thus subject to Section 2.3(c). The Parent and Indemnification Representative agree that any Arbitrable Claim is between the Parent and Indemnification Representative on behalf of the Holders, and the Escrow Agent is not a party to any Arbitrable Claim, and shall have no duty or obligation to monitor or enforce the provisions of Section 2.3(c) hereof, including without limitation any payment of costs pursuant to Section 2.3(c)(iv), or to determine whether a Contested Claim is an Arbitrable Claim. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested in whole or in part by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge “Parent Distribution Notice"”) attaching a ----------------------------- copy of the final award or decision of the an arbitrator under paragraph (c) below and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "“Representative Distribution Notice"”) attaching a copy of the final award or ----------------------------------- decision of the an arbitrator under paragraph (c) below that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow SharesShares in accordance with their percentage interests as set forth on Schedule A attached hereto and made a part hereof. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' ’ interests thereintherein as certified in writing to the Escrow Agent, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge Parent either in the arbitrator's ’s final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Sellers’ Representative gives may contest a claim made under Section 3(a), 3(b) or 6 hereof, and Buyer may contest a claim under Section 3(d) hereof, if it reasonably believes there is a basis for disputing such claim, by giving prompt written notice (a “Contest Notice”) to Cambridge the Escrow Agent and the Custodian contesting all Buyer or a portion of a Notice of Claim (a "Contested Claim") within the 30-day --------------- period provided aboveSellers’ Representative, matters that are subject to third party claims against Cambridge or Excell in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge on the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement may be, but in any event prior to the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received respective dates for payment by the Custodian that a Notice of Claim is contested by the Escrow Agent pursuant to an Adjustment Notice, Indemnification RepresentativeNotice, then the Custodian shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Disbursement Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall at the same time provide a copy of the Cambridge Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Tax Distribution Notice, as applicablethe case may be (a “Contested Claim”). Such Contest Notice shall set forth, (a) release in reasonable detail, each disputed item or amount and the basis of the disagreement. Buyer and Sellers’ Representative first shall attempt in good faith to Cambridge resolve all of the number of Escrow Shares specified issues set forth in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release Contest Notice prior to the Holders twentieth day following the balance date of receipt by the Escrow Agent of a Contest Notice. After such negotiation period, Buyer and Sellers’ Representative shall deliver joint written instructions to the Escrow Agent directing the Escrow Agent to disburse any portion of the Escrow Shares. If the earliest of the three events described above is (iii) Funds with respect to which all disputes have been resolved, and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), Agent shall make such disbursements in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or findingsuch instructions. In the event that Buyer and Sellers’ Representative cannot reach an agreement during such negotiation period, then the Custodian institutes Escrow Agent shall not make any payment out of the applicable Escrow Account until such dispute is resolved. If such dispute is resolved pursuant to judicial process, then upon receipt of a certificate from an action for interpleader officer of the Buyer or a certificate from Sellers’ Representative stating that such dispute has been finally resolved and attaching thereto a final and non-appealable judgment of a court of competent jurisdiction resolving such dispute and stating the amount of such judgment which remains unsatisfied, the Escrow Agent shall make such payment in accordance with such judgment and the provisions of Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c)3 hereof.
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Representative Seller gives (and the Escrow Agent receives) written notice to Cambridge and the Custodian contesting all of, or a portion of of, a Notice of Claim to the Buyer and the Escrow Agent (a "Contested Claim") within the thirty (30-day --------------- ) Business Day period provided above, matters that are subject the Escrow Agent shall not release any of the Indemnity Fund and/or Litigation Fund to third party claims against Cambridge or Excell in a litigation or arbitration shall await the final decision, award or settlement Buyer with respect to the contested portion of such litigation or arbitrationNotice of Claim, while matters that arise between Cambridge on and the one hand Seller and Excell and/or the Holders on Buyer shall attempt to resolve the other hand, including any matter. All disputes regarding performance or nonperformance of a party's obligations the Indemnity Fund and/or Litigation Fund under this Escrow Agreement ("Arbitrable Claims"), ----------------- Section 5(b) shall be settled either by (i) mutual agreement of the Buyer and the Seller (evidenced by appropriate instructions in accordance with Section 2.3(cwriting to the Escrow Agent signed by the Buyer and the Seller specifically instructing the Escrow Agent as to disposition of the Indemnity Fund and/or Litigation Fund) below. Any portion or (ii) by a final judgment, order or decree of a Notice court of Claim that is not contested competent jurisdiction (the time for modification or is subsequently settled appeal therefrom having expired and no action having been taken or perfected, or if any such action or motion to alter, amend, modify or appeal such final judgment, order or decree has been taken and perfected, after final resolution by Cambridge and the Indemnification Representative highest court having jurisdiction thereof), a copy of which judgment, order or decree (collectively, "Settlement Documentation") in either case shall be resolved delivered to the Escrow Agent by the Buyer or the Seller and accompanied by instructions to the effect that such judgment, order or decree is final, that the time for appeal therefrom has expired (without an appeal having been perfected) and that such judgment, order or decree entitles the Seller or the Buyer, as set forth above the case may be, to a specified amount of the Indemnity Fund and/or Litigation Fund. Such instructions, in Section 2.3(a)the case of mutual agreement between the parties, provided that or Settlement Documentation, in the case of a settlement final judgment, order or decree of a court of competent jurisdiction, shall constitute written instructions to the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian that a Notice of Claim is contested by the Indemnification Representative, then the Custodian shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), Agent to deliver promptly the number of Escrow Shares specified in the Release Notice Indemnity Fund and/or Litigation Fund equal in value to the amount of such settled Contested Claim in accordance with such agreement, judgment, order or as otherwise provided decree. The balance, if any, of property constituting the Indemnity Fund and/or Litigation Fund shall be released promptly in Section 3.1accordance with Article 2 of the Stock Purchase Agreement. The Escrow Agent shall be under no duty to institute or defend any such proceedings, until and none of the earlier of: (i) receipt costs and expenses of such proceedings shall be borne by the Escrow Agent. If the terms of a settlement agreement executed by Cambridge and of a dispute hereunder increase the Indemnification Representative setting forth a resolution duties or liabilities of the Notice of Claim Escrow Agent and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth Agent has not participated in such settlement so as to be bound thereby, then such settlement shall be effective as to the Escrow Adjustments (Cambridge shall at Agent in respect of such increase in its duties or liabilities only upon the same time provide a copy of the Cambridge Distribution Notice Escrow Agent's written assent thereto. Prior to the Indemnification Representative); or (iii) receipt settlement of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made any dispute as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described provided in the preceding sentence is (i) or (iithis Section 5(b)(ii), the Custodian shallEscrow Agent is authorized and directed to retain in its possession, within twenty (20) calendar days of receipt without liability to any party hereto, the Indemnity Fund and/or Litigation Fund; provided, however, that any portion of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above Indemnity Fund and/or Litigation Fund which is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), not contested shall be disbursed in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms provisions of this Agreement. If the award or decision Article 2 of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c)Stock Purchase Agreement.
Appears in 1 contract
Sources: Escrow Agreement (Caminus Corp)
Contested Claims. In the event that the Indemnification ---------------- Shareholders Representative gives written notice to Cambridge Buyer and the Custodian Escrow Agent contesting all or a portion of a Claim Notice of Claim (a "Contested Claim") within the thirty (30-) day --------------- period provided above, matters that are subject to third party claims against Cambridge or Excell in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge on the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- matter shall be settled in accordance with this Section 2.3(c) below2.3.2. Any portion of a Claim Notice of Claim that is not contested or is subsequently settled by Cambridge and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares2.3.1. If written notice is received by the Custodian Escrow Agent that a Claim Notice of Claim is contested by the Indemnification RepresentativeShareholders Representative or if any dispute exists with respect to an amount to be distributed under Section 2.3.1, then the Custodian Escrow Agent shall hold hereunder in the General Claim Fund or Designated Claim Fund, as applicable, after what would otherwise be the applicable Partial Escrow Release Date or General Escrow Release Date (as defined in Section 3.1 belowthe case of General Claims) or Designated Release Date (in the case of Designated Claims), the number amount of Escrow Shares Funds, as specified in the Release Claim Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement joint instructions executed by Cambridge Buyer and the Indemnification Shareholders Representative setting forth a resolution of the Claim Notice of Claim and the portion of Escrow AdjustmentsFunds to be delivered to Buyer and, if a Partial Escrow Release Date or Escrow Release Date has occurred with respect to the applicable fund against which the Claim was made, the portion (if any) of the Escrow Funds to be delivered to the Shareholders (such joint instructions, "Joint Instructions"); (ii) receipt of a written notice from Cambridge Buyer (a "Cambridge Buyer Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator court or Accounting Arbitrator and setting forth the portion of Escrow Adjustments Funds to be delivered to Buyer (Cambridge Buyer shall at the same time provide a copy of the Cambridge Buyer Distribution Notice to the Indemnification Shareholders Representative); or (iii) receipt of a written notice from the Indemnification Shareholders Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator court or Accounting Arbitrator that no portion of Escrow Adjustments are Funds is to be made delivered to Buyer as a result of such award (the Indemnification Representative Shareholder Representatives shall at the same time provide a copy of the Representative Distribution Notice to CambridgeBuyer). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of Promptly upon receipt of the settlement agreement or the Cambridge a Buyer Distribution Notice, as applicable, (a) release to Cambridge the number Escrow Agent shall provide a copy of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release such notice to the Holders the balance of the Escrow SharesShareholders Representative. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of Promptly upon receipt of the a Representative Distribution Notice, release Escrow Agent shall provide a copy of such notice to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred Buyer. The following sets forth actions to be taken by the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either Agent in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).following situations:
Appears in 1 contract
Sources: Merger Agreement (Quanex Corp)
Contested Claims. In the event that the Indemnification ---------------- Representative any Seller or Shareholder gives written notice to Cambridge and the Custodian contesting all or a portion of a Notice of Claim to Buyer and Escrow Agent (a "Contested ClaimCONTESTED CLAIM") within the 30-day --------------- period provided above, matters the following procedures shall apply: (i) Claims that are subject to third the result of third-party claims asserted against Cambridge or Excell in a litigation or arbitration shall Buyer will await the final decision, award or settlement of such litigation third-party claim; provided that any such asserted third-party claim will be deemed resolved in favor of Buyer if, within twelve (12) months following the End of the Escrow Term, such asserted third-party claim does not result in the actual commencement of, or arbitrationwritten correspondence threatening the commencement of, while matters any litigation, arbitration or other proceedings by the third-party claimant, provided, however, that arise between Cambridge Buyer shall not lose its right to make a Claim with respect thereto, if such third-party claim is once again asserted against Buyer prior to expiration of the twelve-month period following the End of the Escrow Term; and/or (ii) Claims by Buyer for breaches of representations, warranties, agreements and covenants by any of Sellers or Shareholders under the Transaction Agreements that do not include claims asserted by third parties, will be settled as provided for in the relevant Transaction Agreement under which the Claims arose, as will Claims based on the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations third-party claims successfully asserted under this Escrow Agreement clause ("Arbitrable Claims"i), ----------------- shall be settled but which any Seller or Shareholder asserts do not result in accordance with Section 2.3(c) belowan indemnification obligation under any Transaction Agreement in favor of Buyer. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge will be considered resolved and the Indemnification Representative Escrow Agent shall be resolved instructed in writing by Buyer as to any disbursement to make as set forth above in Section 2.3(aSECTION 4(A). If any Contested Claim which is a third-party claim asserted against Buyer under clause (i) is resolved against Buyer and as to which no Seller or Shareholder disputes the indemnification obligation, provided that then such Contested Claim will be considered resolved and Escrow Agent will promptly transfer to Buyer the amount of Escrow Cash as directed in writing by Buyer, having a value (determined pursuant to SECTION 4(C) hereof) equal to the amount of damages specified in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian that a Notice of Claim is contested which has not been paid by end of the Indemnification RepresentativeEscrow Term and will notify Sellers and Shareholders of such transfer in writing within five (5) business days of such transfer. After receipt of notice that a Claim has been contested, then Escrow Agent will continue to hold in the Custodian shall hold hereunder after what would otherwise be Escrow Account the Release Date (as defined in Section 3.1 below), the number amount of Escrow Shares specified Cash as directed in writing by Buyer sufficient to cover such Contested Claim (notwithstanding the Release Notice or as otherwise provided in Section 3.1, expiration of the Escrow Term) until the earlier of: (i) receipt execution of a settlement agreement executed by Cambridge Buyer and the Indemnification Representative subject Seller or Shareholder setting forth a resolution of the Notice of Claim and the Escrow Adjustments; Claim, or (ii) receipt of a written notice from Cambridge (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award of the arbitrator or court, as applicable. The final decision of the arbitrator or court, as applicable will be furnished to each of Sellers and setting forth Shareholders and Buyer in writing and will constitute a conclusive determination of the issue in question, binding upon the parties. In acting under this Agreement the Escrow Adjustments (Cambridge Agent shall at the same time provide be entitled to receive and may conclusively rely on a copy certificate of the Cambridge Distribution Notice presenting party to the Indemnification Representative); or (iii) receipt of effect that a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a true and correct copy of the final award or ----------------------------------- decision of the arbitrator or court is attached and that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence decision is (i) or (ii)final, the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments binding and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c)non-appealable.
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested Claim") within the 30-day --------------- period provided above, (i) matters that are subject to third party claims against Cambridge Parent or Excell Alacrity in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while and (ii) matters that arise between Cambridge Parent on the one hand hand, and Excell Alacrity and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable ---------- Claims"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Parent and ------ Indemnification Representative shall certify in writing to the Escrow Agent whether a Contested Claim is an Arbitrable Claim, and is thus subject to Section 2.3(c). The Parent and Indemnification Representative agree that any Arbitrable Claim is between the Parent and Indemnification Representative, the Escrow Agent is not a party to any Arbitrable Claim, and shall have no duty or obligation to monitor or enforce the provisions of Section 2.3(c) hereof, including without limitation any payment of costs pursuant to Section 2.3(c)(iv), or to determine whether a Contested Claim is an Arbitrable Claim. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share Average Price notwithstanding any change in the market value of Cambridge Parent Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested in whole or in part by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Parent Distribution Notice") attaching a ----------------------------- copy of -------------------------- the final award or decision of the an arbitrator under paragraph (c) below and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- ---------------------------------- decision of the an arbitrator under paragraph (c) below that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow SharesShares in accordance with their percentage interests which shall be certified in writing to the Escrow Agent. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests thereintherein as certified in writing to the Escrow Agent, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge Parent either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested ClaimCONTESTED CLAIM") within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge Parent or Excell HT in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge Parent on the one hand and Excell HT and/or the Holders Indemnification Representative on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable ClaimsARBITRABLE CLAIMS"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that PROVIDED THAT in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share Parent Average Closing Price notwithstanding any change in the market value of Cambridge Parent Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Distribution NoticePARENT DISTRIBUTION NOTICE") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution NoticeREPRESENTATIVE DISTRIBUTION NOTICE") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative Holder shall at the same time provide a copy of the Representative Holder Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders Holder the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders Holder the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that PROVIDED THAT if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge Parent either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Sources: Escrow Agreement (Lionbridge Technologies Inc /De/)
Contested Claims. In the event that the Indemnification ---------------- Representative gives Intuit written notice to Cambridge and the Custodian contesting all or a any portion of a Notice of Claim (a "Contested Claim") within the thirty (30-) day --------------- period provided abovedescribed in Section 11.10.1, matters that are subject to third party claims against Cambridge then: (i) such Contested Claim will be resolved by either (A) a written settlement agreement executed by Intuit and the Representative (a "SETTLEMENT AGREEMENT") or Excell (B) in a litigation or arbitration shall await the final decision, award or settlement absence of such a Settlement Agreement, by litigation or arbitration, while matters that arise of such Contested Claim in the Designated Court (as defined below) between Cambridge on Intuit and the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- shall be settled Representative in accordance with the terms and provisions of Sections 11.10.3 and 11.10.4; provided, however, that if such Contested Claim involves an amount not in excess of Ten Million Dollars ($10,000,000) (net of any amount of the Deductible that may be applied against such Contested Claim) and does not involve any request for an injunction or other equitable relief, then such Contested Claim (an "ARBITRABLE CONTESTED CLAIM") shall be resolved by mandatory, binding arbitration in accordance with the provisions of Section 2.3(c) below11.10.4(b), without prejudice to Intuit's right of Offset pursuant to Section 11.4. Any portion of a the Notice of Claim that is not contested or is subsequently settled by Cambridge and the Indemnification Representative shall in accordance with the foregoing provisions of this Section 11.10.2 will be resolved as set forth above an Uncontested Claim in accordance with Section 2.3(a), provided 11.10.1. After receiving notice that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian that a Notice of Claim is contested by the Indemnification Representative, then Intuit may, notwithstanding the Custodian shall hold hereunder after what would otherwise be occurrence of the Release Date (as defined in Section 3.1 below)Representation Termination Date, continue to hold, pursuant to its right of Offset, an amount of any unpaid Installment Payment sufficient to cover the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, maximum potential award to all Indemnified Persons under such Claim until the earlier of: (i) receipt execution of a settlement agreement executed Settlement Agreement by Cambridge Intuit and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; all such Contested Claims, or (ii) receipt of a written notice from Cambridge (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall at the same time provide a copy of the Cambridge Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow Final Judgment (as defined in Section 3.1), below) regarding such Contested Claim and will then dispose of the remaining portion of the Installment Payment(s) made subject to such Offset in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award such Settlement Agreement or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or Final Judgment, as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c)applicable.
Appears in 1 contract
Sources: Exchange Agreement (Intuit Inc)
Contested Claims. In If the event that the Indemnification ---------------- Representative gives the Indemnified Party written notice to Cambridge and the Custodian contesting all or a any portion of a Notice of Claim within the twenty (20) Business Day period specified in Section 10.5(a)(i) (a "“Contested Claim") within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge or Excell in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge on the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"”), ----------------- shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of then such Contested Claim that is not contested or is subsequently settled by Cambridge and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian that a Notice of Claim is contested by the Indemnification Representative, then the Custodian shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: either (i) receipt of a written settlement agreement executed by Cambridge the Representative and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; Indemnified Party or (ii) receipt in the absence of such a written notice from Cambridge settlement agreement within thirty (a "Cambridge Distribution Notice"30) attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall at the same time provide a copy of the Cambridge Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of Business Days following receipt of the settlement agreement or the Cambridge Distribution Noticewritten notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of by binding arbitration between the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), and Indemnified Party in accordance with the Holders' interests thereinterms and provisions of Section 12.17. The Representative and the Indemnified Party shall endeavor in good faith to resolve any Contested Claim within the thirty (30) Business Day period following receipt of the written notice of the Contested Claim prior to submitting such claim to arbitration. The Representative and the Indemnified Party shall promptly deliver instructions to the Escrow Agent to disburse to the Indemnified Party from the Escrow Account the amount specified in such written settlement agreement or pursuant to such arbitration, provided that as applicable. For purposes of this Section 10.5(a)(ii), in any proceeding hereunder and pursuant to Section 12.17, the Parent or other Indemnified Party shall be deemed to be the prevailing party if the Release Date has not occurred arbitrator awards the Escrow Shares shall continue to be held pursuant Parent or other Indemnified Party one-half or more of the amount in dispute immediately prior to the terms of this Agreement. If the award or decision of the arbitrator; if the arbitrator concludes that Escrow Shares are awards the Parent or other Indemnified Party less than one-half of the amount in dispute immediately prior to the decision of the arbitrator, the Representative shall be deemed to be released the prevailing party. The non-prevailing party to Cambridge either in satisfaction of Damages or as Prevailing Party Awardsa suit shall pay its own expenses and the expenses, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the partiesincluding attorneys’ fees and costs, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced reasonably incurred by the parties or any dispute pursuant other party to this Section 2.3(b) and Section 2.3(c)the arbitration.
Appears in 1 contract
Sources: Merger Agreement (Realpage Inc)
Contested Claims. In the event that the Indemnification ---------------- Representative Holder gives written notice to Cambridge Buyer and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested ClaimCONTESTED CLAIM") within the 30-day --------------- period provided above, matters relating to such Contested Claim that are subject to third party claims against Cambridge Buyer or Excell the Company in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters relating to such Contested Claim that arise between Cambridge Buyer on the one hand and Excell the Company and/or the Holders Holder on the other hand, including any disputes regarding breach of representations and warranties or performance or nonperformance of a party's obligations under this Escrow the Agreement ("Arbitrable ClaimsARBITRABLE CLAIMS"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Buyer and the Indemnification Representative Holder shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification RepresentativeHolder, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Buyer and the Indemnification Representative Holder setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Buyer (a "Cambridge Distribution NoticeBUYER DISTRIBUTION NOTICE") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge Buyer shall at the same time provide a copy of the Cambridge Buyer Distribution Notice to the Indemnification RepresentativeHolder); or (iii) receipt of a written notice from the Indemnification Representative Holder (a "Representative Distribution NoticeREPRESENTATIVE DISTRIBUTION NOTICE") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative Holder shall at the same time provide a copy of the Representative Distribution Notice to CambridgeBuyer). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Buyer Distribution Notice, as applicable, (a) release to Cambridge Buyer of that portion of the number of Escrow Shares Fund specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders Holder the balance of the Escrow SharesFund. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders Holder the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares Fund shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Sources: Escrow Agreement (Teradyne Inc)
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian contesting all or a portion of a Notice of Claim (a "Contested Claim") within the 30-day period --------------- period provided above, matters that are subject to third party claims against Cambridge Parent or Excell Calogic in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge Parent on the one hand and Excell Calogic and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- ) shall be settled ----------------- in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share Parent Average Closing Price notwithstanding any change in the market value of Cambridge Parent Common Shares. If written notice is received by the Custodian that a Notice of Claim is contested by the Indemnification Representative, then the Custodian shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Parent Distribution Notice") attaching a ----------------------------- copy of --------------------------- the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative -------------- Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the ------------------- arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge Parent either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Del Arroz Manuel)
Contested Claims. (a) In the event that the Indemnification ---------------- Shareholders’ Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim or a Parent Demand (a "“Contested Claim"”) within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge or Excell in a litigation or arbitration shall await the final decision, award or settlement 30 calendar days of receipt of such litigation Notice of Claim or arbitrationParent Demand, while matters as applicable, the Shareholders’ Representative and Parent will use their respective good faith efforts to resolve such dispute, provided that arise between Cambridge on if such dispute is not resolved in 20 calendar days, then the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- shall Contested Claim will be settled in accordance with Section 2.3(c) 2.3.3 below. Any portion of a Notice of Claim or Parent Demand that is not contested or is subsequently settled by Cambridge and the Indemnification Representative shall will be resolved as set forth above provided in Section 2.3(a), provided that in the case 2.3.1. If notice of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice Contested Claim is received by the Custodian that a Notice of Claim is contested by the Indemnification RepresentativeEscrow Agent, then the Custodian shall Escrow Agent will continue to hold hereunder after what would otherwise be in the Release Date General Escrow Account a portion of the General Escrow Amount (as defined in Section 3.1 below), the number of Escrow Shares “Contested Amount”) equal to the amount that is specified in the Contested Claim assuming that the claim is resolved in favor of Parent. The Contested Amount will not be released on the Release Notice Date, or as otherwise provided for in Section 3.1, and will be retained by the Escrow Agent until such time as one of the conditions included in Section 2.3.2(b) is satisfied.
(b) The Contested Amount will be held until the earlier of: (i) receipt by the Escrow Agent of a settlement agreement executed by Cambridge Parent and the Indemnification Shareholders’ Representative setting forth a resolution of the Notice of Contested Claim and the portion of the General Escrow AdjustmentsAmount, if any, to be delivered to Parent; (ii) receipt by the Escrow Agent of a written notice from Cambridge Parent (a "Cambridge “Parent Distribution Notice"”) attaching a ----------------------------- copy of the arbitrator’s final award award, decision, or decision of supplementary report or finding made in accordance with Section 2.3.3 (the arbitrator “Arbitrator’s Award”), and setting forth the portion of the General Escrow Adjustments Amount to be delivered to Parent (Cambridge shall Parent will at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Shareholders’ Representative); or (iii) receipt by the Escrow Agent of a written notice from the Indemnification Shareholders’ Representative (a "Representative the “Representative’s Distribution Notice"”) attaching a copy of the final award or ----------------------------------- decision Arbitrator’s Award that no portion of the arbitrator that no General Escrow Adjustments are Amount is to be made delivered to Parent as a result of such award (the Indemnification Shareholders’ Representative shall will at the same time provide a copy of the Representative Representative’s Distribution Notice to CambridgeParent). If the earliest to occur of the three events described in the preceding sentence is (i) or (ii), the Custodian shallEscrow Agent will, within twenty (20) 20 calendar days of receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance portion of the General Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurredAmount, and there are no remaining unresolved Contested Claimsif any, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent as identified in such settlement agreement or the Arbitrator’s Award to which the Parent Distribution Notice relates.
(c) If the Arbitrator’s Award concludes that a portion of the General Escrow Amount is to be released to Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall will specify in the number Arbitrator’s Award the amount of such Damages and Prevailing Party Award (if any) and the corresponding amount of the General Escrow Shares Amount to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or findingParent. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this General Escrow Agreement as a result of a dispute between Parent and the partiesShareholders’ Representative, Parent and the parties hereby Shareholders’ Representative agree to jointly seek to stay such the interpleader action pending the resolution of any arbitration commenced by Parent or the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c)Shareholders’ Representative.
Appears in 1 contract
Contested Claims. In the event that Parent or the Indemnification Stockholder ---------------- Representative Representative, as the case may be, gives written notice to Cambridge other and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested Claim") --------------- within the 30-day --------------- period provided above, (i) matters that are subject to third party claims against Cambridge Parent or Excell Horizon in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while and (ii) matters that arise between Cambridge Parent on the one hand hand, and Excell Horizon and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement and any disputes regarding an Acceleration Release ("Arbitrable Claims"), ----------------- ) shall be ----------------- settled in accordance with Section 2.3(c) below. Parent and Stockholder Representative shall certify in writing to the Escrow Agent whether a Contested Claim is an Arbitrable Claim, and is thus subject to Section 2.3(c). The Parent and Stockholder Representative agree that any Arbitrable Claim is between the Parent and Stockholder Representative, the Escrow Agent is not a party to any Arbitrable Claim, and shall have no duty or obligation to monitor or enforce the provisions of Section 2.3(c) hereof, including without limitation any payment of costs pursuant to Section 2.3(c)(iv), or to determine whether a Contested Claim is an Arbitrable Claim. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Stockholder Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Indemnification Escrow Shares or Goals Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common SharesMarket Price. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested in whole or in part by Parent or the Indemnification Stockholder Representative, as the case may be, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the an Indemnification Release Date (as defined in Section 3.1 below) or a Goals Escrow Release Date (as defined in Section 3.3 below), the number of Indemnification Escrow Shares or Goals Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Stockholder Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Parent Distribution Notice") attaching a ----------------------------- copy of the final award or decision -------------------------- of the an arbitrator under paragraph (c) below and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Stockholder Representative); or (iii) receipt of a written notice from the Indemnification Stockholder Representative (a "Representative -------------- Distribution ------------ Notice") attaching a copy of the final award or ----------------------------------- decision of the an arbitrator under ------ paragraph (c) below that no Escrow Adjustments are to be made as a result of such award or the Escrow Adjustments are to be made to a Holder pursuant to an Acceleration Release (the Indemnification Stockholder Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Indemnification Escrow Shares or Goals Escrow Shares specified in the Escrow Adjustments and (b) if the Indemnification Release Date or a Goals Escrow Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders Goals Escrow Fund the balance of the Indemnification Escrow SharesShares in accordance with Section 3.1 and 3.2 herein, or release to the Holders that portion of the Goals Escrow Shares which has vested pursuant to the Goals Schedule, on a Pro Rata Basis certified in writing to the Escrow Agent by the Stockholder Representative. If the earliest of the three events described above is (iii) and the Indemnification Release Date or a Goals Escrow Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the Representative Distribution Notice, subject to Section 12.17 herein, release to the Holders Goals Escrow Fund the balance of the Retained Indemnification Escrow (as defined in Section 3.1)) or release to the Holders that portion of the Retained Goals Escrow (as defined in Section 3.3) which has vested pursuant to the Goals Schedule, in accordance with the Holders' interests thereintherein calculated on a Pro Rata Basis as certified in writing to the Escrow Agent by the Stockholder Representative, provided that if the Indemnification Release Date or a Goals Escrow Release Date has not occurred the Indemnification Escrow Shares and the Goals Escrow Shares shall continue to be held pursuant to the terms of this Agreement, provided however, that, notwithstanding any other provisions in this Section 2.3(b), the Escrow Agent shall release to any applicable Holder that portion of the Goals Escrow Shares as is owing pursuant to an Acceleration Release regardless of whether the Goals Release Date has occurred. If the award or decision of the arbitrator concludes that Indemnification Escrow Shares or Goals Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Indemnification Escrow Shares or Goals Escrow Shares to be so released to Cambridge Parent either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Contested Claims. In the event that Company gives Purchaser and the Indemnification ---------------- Representative gives Escrow Agent written notice to Cambridge and the Custodian contesting all all, or a portion of of, a Notice of Claim (a "Contested ClaimCONTESTED CLAIM") within the thirty (30-) day --------------- period provided above, matters that are subject to third party claims brought against Cambridge Purchaser or Excell Company in a litigation or arbitration shall will await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge Purchaser on the one hand and Excell and/or the Holders Company on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement hand ("Arbitrable ClaimsARBITRABLE CLAIMS"), ----------------- shall will be settled by binding arbitration between Purchaser and Company in accordance with Section 2.3(c) belowthe terms and provisions of this Agreement. Any portion of a the Notice of Claim that is not contested or is subsequently settled by Cambridge and (the Indemnification Representative shall Escrow Agent being entitled to assume that, unless it has received written notice of a Contested Claim within the thirty (30) day period set forth in Section 4(a), Company has no objection to a Notice of Claim) will be resolved as set forth above in Section 2.3(a4(a). The final decision of the arbitrator (such arbitrator to be appointed pursuant to the provisions of Section 4(b)(iii) of this Agreement) will be furnished to the Escrow Agent, provided that Company and Purchaser in writing and will constitute a conclusive determination of the case of a settlement issue in question, binding upon the value of Company and Purchaser. After the Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If Agent has received written notice is received by the Custodian that contesting a Notice of Claim is contested by within the Indemnification Representative, then the Custodian shall hold hereunder after what would otherwise be the Release Date thirty (as defined in Section 3.1 below)30) day period set forth above, the number of Escrow Agent will set aside and continue to hold in the Escrow Account Escrow Shares specified in having a value (determined pursuant to Section 4(c) hereof) sufficient to cover the amount of such Claim (notwithstanding the expiration of the Escrow Release Notice or as otherwise provided in Section 3.1, Date) until the earlier of: (i) receipt execution of a settlement agreement executed by Cambridge Purchaser and the Indemnification Representative Company setting forth a resolution of the Notice of Claim and the Escrow Adjustments; Claim, or (ii) receipt of a written notice from Cambridge (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall at the same time provide a copy of the Cambridge Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of regarding such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c)Claim.
Appears in 1 contract
Contested Claims. In (i) If both of the event that Company Shareholders' Representatives in the Indemnification ---------------- Representative gives written notice to Cambridge and Response Notice contest the Custodian contesting release of all or part of the Escrow Shares having a portion Fair Market Value equal to all or part of a Notice of Claim the Claimed Amount (a the "Contested Claim") within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge or Excell in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge on the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable ClaimsAmount"), ----------------- the Company Shareholders' Representatives and Parent shall be settled attempt in accordance with Section 2.3(c) below. Any portion good faith for a period of a Notice of Claim that is not contested or is subsequently settled by Cambridge and up to 30 days to agree upon the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian that a Notice of Claim is contested by the Indemnification Representative, then the Custodian shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge and the Indemnification Representative setting forth a resolution rights of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall at the same time provide a copy of the Cambridge Distribution Notice respective parties with respect to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall claims at the same time provide a copy of the Representative Distribution Notice to Cambridge)issue. If the earliest Company Shareholders' Representatives and Parent should so agree, a memorandum setting forth such agreement shall be prepared and signed by Parent and either of the three events described in Company Shareholders' Representatives and shall be furnished to the preceding sentence is (i) or (ii), Escrow Agent. The Escrow Agent shall be entitled to rely upon such memorandum and distribute the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in from the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), Account in accordance with the Holdersterms of the memorandum.
(ii) If no such agreement can be reached after such good faith negotiation, either Parent or both of the Company Shareholders' interests thereinRepresentatives may, provided that if by written notice to the Release Date has not occurred other (with a copy to the Escrow Shares Agent), demand arbitration of the matter unless the Contested Amount is at issue in pending litigation or other dispute resolution procedure with a third party, in which event arbitration shall continue not be commenced until such amount is ascertained or both Parent and the Company Shareholders' Representatives agree to early arbitration of the matter. All arbitration proceedings contemplated by this subsection (e) shall be held in San Diego or San Francisco, California. All claims shall be settled by three arbitrators in accordance with the Commercial Arbitration Rules then in effect of the American Arbitration Association (the "Rules"). The Company Shareholders' Representatives and Parent shall each designate one arbitrator within 15 days of the delivery of the Response Notice contesting the Claimed Amount. Such designated arbitrators shall mutually agree upon and shall designate a third arbitrator; provided however, that (i) in the event the two designated arbitrators fail to reach agreement with respect to the designation of the third arbitrator within 15 days of delivery of the Response Notice, the third arbitrator shall be appointed in accordance with the Rules and (ii) if either the Company Shareholders' Representatives or Parent fail to timely designate an arbitrator, the dispute shall be resolved by the one arbitrator timely designated. There shall be limited discovery prior to the arbitration hearing, subject to the discretion of the arbitrators, as follows:
(a) exchange of witness lists and copies of documentary evidence and documents related to or arising out of the issues to be held arbitrated, (b) depositions of all party witnesses, and (c) such other depositions as may be allowed by the arbitrators upon a showing of good cause. Depositions shall be conducted in accordance with the California Code of Civil Procedure. The arbitrators shall decide the matter to be arbitrated pursuant hereto within 60 days after the appointment of the last arbitrator. The arbitrators' decision shall relate solely to (i) whether Parent is entitled to receive the Contested Amount (or a portion thereof) pursuant to the applicable terms of the Merger Agreement and this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are , and (ii) which party shall be deemed to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).the
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Qualcomm Inc/De)
Contested Claims. In If the event that Lead Shareholder (or the Indemnification ---------------- Representative Relevant Shareholder, as applicable) gives written notice to Cambridge and the Custodian contesting all or a portion of a Notice of Claim to Talarian and the Escrow Agent (a "Contested Claim") within the 30-20 calendar day --------------- period provided above, matters that are subject to third party claims Claims brought against Cambridge Talarian or Excell any other Claiming Party in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge Talarian or any other Claiming Party on the one hand and Excell and/or the Holders Shareholders (or the Relevant Shareholder, as applicable) on the other hand, including any disputes regarding performance or nonperformance non-performance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- ) shall be settled in accordance with Section 2.3(c) 4.4(c), below. Any portion of a the Notice of Claim that is not contested or is subsequently settled by Cambridge and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a4.4(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Sharesabove. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification RepresentativeShareholders (or the Relevant Shareholder, as applicable), then the Custodian Escrow Agent shall hold hereunder in the Escrow Account, after what would otherwise be the First Release Date (or Second Release Date, as defined in Section 3.1 belowapplicable), Escrowed Shares having a value sufficient to cover Damages alleged in such Claim (valuing any Escrowed Shares at the number Fair Market Value as of the date the Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, Agent receives notice that such Claim is being contested) until the earlier of: of (i) receipt of a settlement agreement executed by Cambridge Talarian and the Indemnification Representative Shareholders (or the Relevant Shareholder, as applicable) setting forth a the resolution of the Notice of Claim and setting forth the Escrow Adjustments; number of Escrowed Shares to be released to Talarian, or (ii) receipt of a written notice from Cambridge Talarian (a "Cambridge Talarian Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge number of Escrowed Shares, if any, to be released to Talarian as a result of such award, unless objected to by the Shareholders as described in Section 3.2 above. Talarian shall at the same time provide a copy of the Cambridge Talarian Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall Shareholders at the same time provide a copy of as it provides such notice to the Representative Distribution Notice to Cambridge)Escrow Agent. If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Agent institutes an action for interpleader in accordance with Section 4.6 5.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute or, if the parties are unable to agree, pursuant to this Section 2.3(b4.4(b) and Section 2.3(c4.4(c), below.
Appears in 1 contract
Sources: Agreement With Certain Whitebarn Shareholders (Talarian Corp)
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested Claim") within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge Parent or Excell Natchez in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge Parent on the one hand and Excell Natchez and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the any such case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share Parent Average Closing Price notwithstanding any change in the market value of Cambridge Parent Common SharesStock. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Parent Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow SharesShares less any Escrow Shares necessary to satisfy any remaining unresolved Contested Claims for which sufficient Escrow Shares have not been allocated. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Escrow Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge Parent either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Delano and the Custodian contesting all or a portion of a Notice of Claim (a "Contested ClaimCONTESTED CLAIM") within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge Delano or Excell DA in a litigation or arbitration proceeding shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge Delano on the one hand and Excell DA and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable ClaimsARBITRABLE CLAIMS"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Delano and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian that a Notice of Claim is contested by the Indemnification Representative, then the Custodian shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares and amount of Cash Escrow specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Delano and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Delano (a "Cambridge Distribution NoticeDELANO DISTRIBUTION NOTICE") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge Delano shall at the same time provide a copy of the Cambridge Delano Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution NoticeREPRESENTATIVE DISTRIBUTION NOTICE") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeDelano). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Delano Distribution Notice, as applicable, (a) release to Cambridge Delano the number of Escrow Shares and amount of Cash Escrow specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow SharesShares and the Cash Escrow. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in in, and subject to the provisions of, Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares and Cash Escrow shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares and Cash Escrow are to be released to Cambridge Delano either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares and amount of Cash Escrow to be so released to Cambridge Delano either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Contested Claims. In (I) If the event that Shareholders' Representative in the Indemnification ---------------- Response Notice contests the release of all or part of the Escrow Shares having a Fair Market Value equal to all or part of the Claimed Amount (the "Contested Amount"), the Shareholders' Representative gives and Purchaser shall attempt in good faith for a period of up to 30 days to agree upon the rights of the respective parties with respect to the claims at issue. If the Shareholders' Representative and Purchaser should so agree, a memorandum setting forth such agreement shall be prepared and signed by Purchaser and the Shareholders' Representative and shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely upon such memorandum and distribute the Escrow Shares from the Escrow Account in accordance with the terms of the memorandum.
(II) If no such agreement can be reached after such good faith negotiation, either Purchaser or the Shareholders' Representative may, by written notice to Cambridge the other (with a copy to the Escrow Agent), demand arbitration of the matter unless the Contested Amount is at issue in pending litigation or other dispute resolution procedure with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both Purchaser and the Custodian Shareholders' Representative agree to early arbitration of the matter. All arbitration proceedings contemplated by this subsection (e) shall be held in San Diego, California. All claims shall be settled by one arbitrator in accordance with the Commercial Arbitration Rules then in effect of the American Arbitration Association (the "Rules"). The Shareholders' Representative and Purchaser shall mutually agree upon the designation of the arbitrator within 15 days of the delivery of the Response Notice contesting the Claimed Amount; PROVIDED HOWEVER, that in the event the Shareholders' Representative and Purchaser fail to reach agreement with respect to the designation of the arbitrator within 15 days of delivery of the Response Notice, the arbitrator shall be appointed in accordance with the Rules. There shall be limited discovery prior to the arbitration hearing, subject to the discretion of the arbitrator, as follows: (a) exchange of witness lists and copies of documentary evidence and documents related to or arising out of the issues to be arbitrated, (b) depositions of all party witnesses, and (c) such other depositions as may be allowed by the arbitrator upon a showing of good cause. Depositions shall be conducted in accordance with the California Code of Civil Procedure. The arbitrator shall decide the matter to be arbitrated pursuant hereto within 60 days after the appointment of the arbitrator. The arbitrator's decision shall relate solely to (i) whether Purchaser is entitled to receive the Contested Amount (or a portion thereof) pursuant to the applicable terms of a Notice of Claim the Purchase Agreement and this Agreement, and (a "Contested Claim"ii) within the 30-day --------------- period provided above, matters that are subject to third which party claims against Cambridge or Excell in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge on the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- shall be settled deemed to be the "prevailing party" in accordance with Section 2.3(carbitration for the purposes of subparagraph (iii) below. Any portion The final decision of the arbitrator shall be furnished to the Shareholders' Representative, Purchaser and the Escrow Agent in writing and shall constitute a conclusive determination of the issue in question, binding upon the Shareholders' Representative, Seller, Purchaser and the Escrow Agent and shall not be contested by any of them. Such decision may be used in a court of law only for the purpose of seeking enforcement of the arbitrator's award. After delivery of a Response Notice of Claim that is not contested or is subsequently settled by Cambridge and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian that a Notice of Claim Claimed Amount is contested by the Indemnification Shareholders' Representative, the Escrow Agent shall continue to hold in the Escrow Account a number of Escrow Shares having a Fair Market Value (calculated as of the Termination Date) equal to one hundred twenty-five percent (125%) of the Claimed Amount or Contested Amount (up to the number of Escrow Shares then available in the Custodian shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 belowEscrow Account), as the case may be, which has not then been resolved, notwithstanding the occurrence of the Termination Date, until (i) delivery of a copy of a settlement agreement executed by Purchaser and the Shareholders' Representative setting forth instructions to the Escrow Agent as to the release of Escrow Shares from the Escrow Account, if any, that shall be made with respect to the Contested Amount, or (ii) delivery of a copy of the final award of the arbitrator setting forth instructions to the Escrow Agent as to the release of Escrow Shares from the Escrow Account, if any, that shall be made with respect to the Contested Amount. The Escrow Agent shall thereupon release in accordance with such settlement agreement or arbitration award Escrow Shares from the Escrow Account (to the extent Escrow Shares are then held in the Escrow Account) (A) in the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall at the same time provide a copy of the Cambridge Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be arbitration award, if such specification is made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution Noticearbitration award, as applicableor (B) if no such specification is made, (a) release to Cambridge in the number of Escrow Shares specified having a Fair Market Value equal to the settlement or award amount stated in such settlement agreement or arbitration award, calculated using the Fair Market Value as of the date of actual receipt by the Escrow Adjustments and (b) if Agent of the Release Date has occurredwritten settlement agreement or arbitration award. The non-prevailing party in any such arbitration proceeding shall pay its own expenses, the fees of the arbitrator, the administration fee of the American Arbitration Association, and there are no remaining unresolved Contested Claimsthe expenses, release including without limitation, the reasonable attorneys' fees and costs, incurred by the prevailing party to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c)arbitration.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Imageware Systems Inc)
Contested Claims. In (i) To contest any Claim, the event that the Indemnification ---------------- Seller Representative gives must deliver written notice of such contest to Cambridge the Indemnified Party, with a copy to the Escrow Agent (an “Objection”), which Objection must be received by the Indemnified Party no later than 11:59 p.m. Eastern time on the thirtieth (30) calendar day after receipt by the Seller Representative of the respective Claim Certificate. The Objection shall set forth in reasonable detail the basis of the Seller Representative’s objection to the Claim or Claims and the Custodian contesting all or amount in dispute. If the Objection relates only to a portion of a Notice the Claim, the portion of the Claim (a "Contested Claim") within the 30-day --------------- period provided above, matters that are not subject to third party claims against Cambridge or Excell in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge on the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- Objection shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge and released to the Indemnification Representative shall be resolved Indemnified Party as set forth above in Section 2.3(apromptly as practicable (up to the then-available Escrow Funds), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian that a Notice of Claim is contested by the Indemnification Representative, then the Custodian shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; .
(ii) receipt of If the Seller Representative fails to deliver a written notice from Cambridge (timely Objection to the Indemnified Party pursuant to Section 3(c)(i) or only delivers a "Cambridge Distribution Notice") attaching timely Objection with respect to a ----------------------------- copy portion of the final award Claim, the Indemnified Party may deliver to the Escrow Agent the applicable Claim Certificate and a certificate executed by an authorized officer of such Indemnified Party certifying that such Indemnified Party failed to receive a timely objection or decision that the Objection received was only with respect to a portion of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall at the same time provide a copy of the Cambridge Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution NoticeClaim, as applicable, (atogether, the “Accepted Claim Certificate”) release and the Escrow Agent shall pay to Cambridge the number Indemnified Party an amount equal to the amount requested in such Accepted Claim Certificate (up to the then-available Escrow Funds).
(iii) If the Seller Representative delivers a timely Objection with respect to all or any portion of a Claim Certificate, the Escrow Shares specified Agent shall not disburse, and shall continue to hold in the Escrow Adjustments and Account, the amount requested in the Claim Certificate or the disputed portion thereof, as applicable, pending receipt of either (bA) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release written instructions to the Holders Escrow Agent, substantially in the balance form of Exhibit IC hereto, executed by both the Indemnified Party and the Seller Representative specifying the action to be taken by the Escrow Agent in respect of such Claim Certificate (“Joint Written Instructions”), or (B) a notice to all other parties to this Agreement from either the Indemnified Party or the Seller Representative stating that such Claim Certificate has been submitted to a court of competent jurisdiction for judgment and that a judgment with respect to such matters has been rendered and is final and non-appealable (in each case, a “Judgment Notice”), which Judgment Notice shall be accompanied by a copy of the Escrow Shares. If final, non-appealable judgment of such court (each, an “Order”), pursuant to which such court has determined whether and to what extent the earliest of the three events described above Indemnified Party is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release entitled to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either amount requested in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c)Claim Certificate.
Appears in 1 contract
Sources: Stock Purchase Agreement (Parametric Technology Corp)