Escrow. (i) Notwithstanding the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”). (ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX. (iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement. (iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement. (v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement. (vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement. (vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement. (viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 2 contracts
Sources: Agreement and Plan of Merger, Agreement and Plan of Merger (Kindred Healthcare, Inc)
Escrow. (i) Notwithstanding the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount Deposit shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith held by the Escrow Agent, Parent in trust, on the terms hereinafter set forth:
A. The Escrow Agent shall deposit the Escrow Deposit in treasury bills, treasury backed repurchase agreements or as otherwise directed in writing by Sellers and Buyer.
B. The Escrow Agent shall not commingle the Stockholder Representative Deposit with any other funds of the Escrow Agent or others and shall promptly advise Buyer and Sellers of the number of any bank account in which the Escrow Deposit has been deposited.
C. If the Closing takes place under this Agreement (the “Escrow Agreement”"Closing").
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, howeverthen, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following on the Closing Date, the then-remaining balance Escrow Agent shall deliver the Deposit to, or upon the instructions of, Sellers. In such event, any interest earned on the Escrow Deposit shall be credited against the Balance of the Indemnification Purchase Price due from Buyer hereunder.
D. If this Agreement is terminated in accordance with the terms hereof, then the Escrow AmountAgent shall pay the Deposit to, less or upon the Documentation instructions of, the party entitled thereto in accordance with the provisions of this Agreement.
E. If the Closing does not take place under this Agreement by reason of the failure of either party to comply with its obligations hereunder, then the Escrow Amount, Agent shall be released pay the Deposit to the Stockholder Representative (or its designee) for party entitled thereto in accordance with the benefit provisions of this Agreement.
F. It is agreed that the duties of the Executing StockholdersEscrow Agent are only as herein specifically provided, the Executing Option Holders and Non-Owner Participantsand, subject to the terms provisions of subparagraph G below, are purely ministerial in nature, and conditions that the Escrow Agent shall incur no liability whatever except for willful misconduct or gross negligence, as set forth long as the Escrow Agent has acted in good faith. Sellers and Buyer each release the Escrow Agent from any act done or omitted to be done by the Escrow Agent in good faith in the performance of its duties hereunder. Each of the Sellers and Buyer jointly and severally agrees to indemnify and hold the Escrow AgreementAgent harmless from any and all costs, expenses, claims or actions which may be incurred or asserted by or against the Escrow Agent, including without limitation claims or actions by any of them (except to the extent resulting from the Escrow Agent's willful misconduct or gross negligence).
(iv) Thirty-six (36) months following G. The Escrow Agent is acting as a stakeholder only with respect to the Closing DateDeposit. If there is any dispute as to whether the Escrow Agent is obligated to deliver the Escrow Deposit or interest earned thereon or as to the party whom said Escrow Deposit and interest earned thereon is to be delivered, the then-remaining balance Escrow Agent shall not make any delivery, but in such event the Escrow Agent shall hold same until receipt by the Escrow Agent of an authorization in writing, signed by all the parties having interest in such dispute, directing the disposition of same, or in the absence of such auth- orization the Escrow Agent shall hold the Deposit until the final determination of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit rights of the Executing Stockholdersparties in an appropriate proceeding. If such written authorization is not given, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
or proceedings for such determination are not begun within thirty (v30) Upon the earlier days of (A) five (5) years following the Closing Date and diligently continued, the Escrow Agent may, but is not required to, bring an appropriate action or (B) proceeding for leave to deposit the final resolution Deposit in court pending such determination. The Escrow Agent shall be reimbursed for all costs and settlement expenses of all matters such action or proceeding including, without limitation, reasonable attorneys' fees and Actions related disbursements, by the party determined not to be entitled to the Identified MattersDeposit. Upon making delivery of the Deposit in the manner herein provided, the then-remaining balance of Escrow Agent shall have no further liability hereunder.
H. The Escrow Agent has executed this Agreement in order to confirm that the Identified Matters Escrow Amount shall be released Agent will hold the Deposit in escrow, pursuant to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreementprovisions hereof.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 2 contracts
Sources: Sale Purchase Agreement (JMB Income Properties LTD Xi), Sale Purchase Agreement (JMB Income Properties LTD X)
Escrow. As security for the faithful performance of the terms of this Agreement and to insure the availability for delivery of Purchaser's Shares upon exercise of the Repurchase Option, the Purchaser hereby pledges and delivers for deposit with the [Chief Financial Officer] of the Company, or such other person designated by the Company, as escrow agent in this transaction ("Escrow Agent"), two stock assignments duly endorsed (with date and number of shares blank) together with the certificate or certificates evidencing the Shares. Such documents are to be held by the Escrow Agent and delivered by the Escrow Agent pursuant to the following instructions of the Company and the Purchaser:
(a) In the event the Company and/or any assignee of the Company exercises the Repurchase Option, Purchaser and the Company hereby irrevocably authorize and direct the Escrow Agent to execute the transaction contemplated by notice of repurchase in accordance with the terms of such notice.
(b) In connection with such transaction the Escrow Agent is directed (i) Notwithstanding to date the provisions of Section 2.6(a), as security stock assignment necessary for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth transfer in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”)question, (ii) an amount to fill in the number of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”)shares being transferred, and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”deliver such assignment, and collectively together with the Indemnification certificate evidencing the Shares to be transferred, to the Company against the delivery of the purchase price for the number of shares of stock being purchased pursuant to the exercise of the Repurchase Option.
(c) Purchaser irrevocably authorizes the Company to deposit with the Escrow AmountAgent any certificates evidencing the Shares to be held by the Escrow Agent hereunder and any additions and substitutions to said shares as defined herein. Purchaser irrevocably constitutes and appoints the Escrow Agent as his attorney-in-fact and agent for the term of this escrow to execute all documents appropriate to make such securities negotiable and to complete any transaction herein contemplated.
(d) Upon written request of the Purchaser, but no more than once per calendar year, unless the Repurchase Option has been exercised, the Adjustment Escrow Amount andAgent will deliver to Purchaser a certificate or certificates representing so many of the Shares as are not then subject to the Repurchase Option. Within 180 days after cessation of Purchaser's continuous employment by the Company, if applicable or any parent or subsidiary of the Company, the Escrow Agent will deliver to Purchaser a certificate or certificates representing the aggregate number of Shares sold pursuant to Section 7.16this Agreement and not repurchased by the Company or its assignees pursuant to exercise of the Repurchase Option.
(e) If at the time of termination of this escrow the Escrow Agent has in his possession any documents, securities, or other property belonging to Purchaser, the JV Buyout Escrow AmountAgent shall deliver such property to Purchaser and be discharged of all further obligations hereunder.
(f) The responsibilities of the Escrow Agent hereunder shall terminate if he shall cease to be Chief Financial Officer of the Company or if he shall resign by written notice to each party. In the event of any such termination or resignation, the “Escrow Amount”), and Company shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “appoint a successor Escrow Agent”). The Escrow Amount In the absence of such appointment, the President of the Company shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent.
(g) It is understood and agreed that should any dispute arise with respect to the delivery, Parent and the Stockholder Representative on behalf ownership, or right of possession of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith Shares held by the Escrow AgentAgent hereunder, Parent the Escrow Agent is authorized to retain without liability to anyone all or any part of said Shares until such disputes shall have been settled either by mutual written agreement or by a final order, decree, or judgment of the arbitrator, if applicable, or of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Stockholder Representative (the “Escrow Agreement”)Agent shall be under no duty whatsoever to institute or defend such proceedings.
(iih) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing DateBy signing this Agreement, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) Agent becomes a party hereto only for the benefit purpose of executing the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as instructions set forth in the Escrow this Section 7 and does not otherwise become a party to this Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 2 contracts
Sources: Restricted Stock Purchase Agreement (Log Point Technologies Inc), Restricted Stock Purchase Agreement (Log Point Technologies Inc)
Escrow. (ia) Notwithstanding Concurrently with the provisions execution of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholdersthis Agreement, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent parties shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) establish an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an escrow account or accounts (the “Escrow Account”) with U.S. pursuant to an escrow agreement substantially in the form attached hereto as Exhibit B (the “Escrow Agreement”) by and among Seller, the Company, ▇▇▇▇ Capital Partners, LLC (“RCP”) and ▇▇▇▇▇ Fargo Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to .
(b) Upon the Parties according to the terms and conditions execution of an escrow agreement dated as of the Closing Date by and among this Agreement:
(i) Seller will deposit into the Escrow Agent, Parent Account this Agreement and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”), each duly and validly executed by Seller.
(ii) An amount equal Each Purchaser will deposit into the Escrow Account:
(A) this Agreement, the Registration Rights Agreement, the Notice of Registration Statement and Selling Securityholder Questionnaire substantially in the form of Exhibit A attached to Five Million Dollars the Registration Rights Agreement and the Escrow Agreement, each duly and validly executed by such Purchaser; and
($5,000,000B) (each Purchaser’s Investment Amount for the “Documentation Escrow Amount”) shall be allocated from Seller Shares set forth on the Indemnification Escrow Amount to address Losses signature page of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”)this Agreement executed by such Purchaser; provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.and
(iii) Eighteen (18) months following The Company will deposit into the Closing DateEscrow Account this Agreement, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders Registration Rights Agreement and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement, each duly and validly executed by the Company.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vc) Upon the earlier execution of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Mattersthis Agreement, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid Seller will deliver to the Company’s transfer agent (the “Transfer Agent”) certificates representing the Seller Shares it will be selling to each Purchaser at the Closing, together with such other documents (including applicable conversion and exercise notices, which may be made contingent on the closing of the transactions contemplated hereby) as the Company and the Transfer Agent may require to effect the transfer of such shares to the name of the Purchasers, including executed stock powers with signatures guaranteed by a national bank or member firm of the New York Stock Exchange and directions for the Transfer Agent to effect such transfer. Subject to Section 1.3(a) below, the Company will instruct the Transfer Agent to issue new Certificates (as defined below) representing the shares to be purchased by each Purchaser and registered in the name of each such Purchaser, and the Company shall pay will instruct the applicable recipient the amount Transfer Agent to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit i) deliver such Certificates to the applicable Governmental Authority) as soon as practicable (but Escrow Agent, who will release such Certificates to the Purchasers at the Closing in no event later than the Company’s next payroll date after the date of the release from accordance with the Escrow Account Agreement, or Stockholder Representative Reserve, as applicable(ii) through otherwise make arrangements acceptable to each Purchaser for the Company’s payrolldelivery of such Certificates to the Purchasers.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Levine Leichtman Capital Partners Ii Lp)
Escrow. (i) Notwithstanding Within forty-five (45) days after the provisions of Section 2.6(aEffective Time (the "INITIAL PAYMENT DATE"), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from prepare the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an Closing Balance Sheet and determine the amount of cash equal Excess Cash. Parent shall provide to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”)MTI, and (iii) an amount any independent auditors retained by MTI, reasonable access during Parent's business hours to those books and records in the possession of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, Parent and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released any personnel which relate to the Parties according preparation of the Net Distributable Amount and to the terms and conditions workpapers of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and its independent auditors for the Stockholder Representative on behalf purposes of resolving any disputes concerning the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”)Net Distributable Amount.
(ii) An Any Excess Cash available, and any Net Proceeds realized, prior to the Escrow Release Date (together with interest thereon, the "ESCROW FUNDS") shall be deposited by Parent in a segregated, interest bearing account in the Company's name ("ESCROW ACCOUNT"). Prior to the Escrow Release Date, Parent shall use Escrow Funds to satisfy any Escrow Liabilities arising prior to the Escrow Release Date. On the Escrow Release Date, an amount equal to Five Million Dollars the Escrow Funds, less the amount of any Escrow Liabilities remaining outstanding on that date ($5,000,000"NET DISTRIBUTABLE AMOUNT"), which amount shall be approved by a committee of directors of Parent who were not directors or officers of Parent immediately prior to the Effective Time (the "SPECIAL COMMITTEE"), shall be distributed as a Payment to the Payment Agent for the benefit of the Parent Closing Date Shareholders. Prior to such Payment, Parent shall provide MTI (or such other persons as MTI designates to represent the interests of the Parent Closing Date Shareholders) (the “Documentation Escrow "SHAREHOLDER REPRESENTATIVE") the calculation of the proposed Payment as calculated under the preceding sentence. Parent shall provide to MTI, and any independent auditors retained by MTI, reasonable access during Parent's business hours to those books and 19 records in the possession of Parent and any personnel which relate to the preparation of the Net Distributable Amount and to the workpapers of Parent and its independent auditors for the purposes of resolving any disputes concerning the Net Distributable Amount”. Absent objection within ten (10) business days to such Payment, such Payment shall be allocated from made in the Indemnification Escrow Distributable Amount and such Payment shall conclusively be deemed to address Losses have been made, and such Net Distributable Amount shall conclusively be deemed to have been calculated, in accordance with this Agreement. If the Shareholder Representative objects to the calculation of the Net Distributable Amount, the Shareholder Representative shall provide to the Parent Indemnified Parties a notice of such objection that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing sets forth in reasonable detail the specific errors or omissions in the calculation of the Net Distributable Amount (“Documentation Matters”"OBJECTION NOTICE"); provided, however, that nothing contained herein shall prevent the amount of the Audited Closing Balance Sheet Non-Hosting GAAP Liabilities may not be a Parent Indemnified Party’s recovery from subject of such Objection Notice, as such number will already have been subject to audit in connection with the Indemnification Escrow Amount in respect audit by PWC of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing DateBalance Sheet; provided, further that the proper calculation of any Post-Closing Non-Hosting GAAP Liabilities arising prior to the Escrow Release Date may be a proper subject of an Objection Notice. Following receipt of any Objection Notice, the then-remaining balance Shareholder Representative and the Special Committee shall discuss in good faith the applicable objections set forth therein for a period of sixty (60) days thereafter and shall, during such period, attempt to resolve the Indemnification Escrow matter or matters in dispute by mutual written agreement. If the Shareholder Representative and the Special Committee reach such an agreement, such agreement shall be confirmed in writing and thereafter the Net Distributable Amount, less the Documentation Escrow Amountas adjusted based on such agreement, shall be released distributed to the Stockholder Representative (or its designee) Payment Agent for the benefit of the Executing StockholdersParent Closing Date Shareholders, which payment shall thereafter be conclusively deemed to have been distributed in accordance with this Agreement. If the Shareholder Representative and the Special Committee are unable to reach a mutual agreement as stated above during the sixty (60) day period referred to therein, then PWC (or if PWC declines to so serve, another "Big 5" auditing firm) (the "ACCOUNTING EXPERT"), acting as an expert and not as an arbitrator, shall resolve those matters still in dispute with respect to the calculation of the Net Distributable Amount. The Accounting Expert's resolution of the matters in dispute, including any adjustments to the Net Distributable Amount made by the Accounting Expert, shall be final and binding on Parent, the Executing Option Holders Shareholder Representative and Non-Owner Participants, subject the Parent Closing Date Shareholders and the Net Distributable Amount (as adjusted by such Accounting Expert) shall be distributed to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) Payment Agent for the benefit of the Executing StockholdersParent Closing Date Shareholders. The Accounting Expert shall make a determination as soon as practicable and in any event within sixty (60) days (or such other time as the Shareholder Representatives and the Special Committee shall agree in writing) after its engagement. Notwithstanding anything set forth in this section, the Executing Option Holders and scope of any dispute to be resolved by the Accounting Expert, acting pursuant hereto shall be limited to correcting errors in the calculation of the Net Distributable Amount, including confirming the proper computation of Excess Cash or Net Proceeds, including that all reserves for Escrow Liabilities have been properly reduced, confirming that all Audited Closing Balance Sheet Non-Owner ParticipantsHosting GAAP Liabilities have been properly reduced, subject confirming that all Audited Closing Balance Sheet Non-Hosting GAAP Liabilities have been paid, discharged or satisfied in full (or deducted in determining the Net Distributable Amount), and confirming that all Post-Closing Non-Hosting GAAP Liabilities arising prior the Escrow Release Date have been paid, discharged or satisfied as of that date and, except for the foregoing matters, the Accounting Expert shall not and is not to make any further determination. Parent, the Special Committee and the Shareholder Representative shall fully cooperate with each other and with the Accounting Expert to resolve 20 any dispute. Notwithstanding any other provision of this Agreement, including without limitation any provision stating that remedies shall be cumulative and not exclusive, this section provides the sole and exclusive method for resolving any and all disputes of each and every nature whatever that may arise with respect to the terms calculation of the Net Distributable Amount or the related Payment. As between the parties, Parent (acting for Parent, the Shareholder Representative, and conditions Parent Closing Date Shareholders) and Company (acting for the Company, and all Company shareholders) hereby irrevocably waive, relinquish and surrender on their own behalf and on behalf of their respective affiliates and representatives all rights to, and agree that they will not attempt, and shall cause their affiliates and representatives not to attempt, to, resolve any such dispute or disputes in any manner other than as set forth in this section, including without limitation through litigation. All fees and expenses of Company and Parent relating to the matters described in this section, including the calculation of the Net Distributable Amount, shall be borne by Parent (and shall not constitute an Escrow Agreement.
(v) Upon Liability for purposes of calculating the earlier Net Distributable Amount), and all fees and expenses of (A) five (5) years following the any former Company shareholder, Parent Closing Date Shareholder, or (B) the final resolution and settlement of all matters and Actions related Shareholder Representative relating to the Identified Mattersmatters described in this section shall be borne by the party incurring such fees. Notwithstanding the foregoing, in the event any dispute is submitted to the Accounting Expert for resolution as provided in this section hereof, the then-remaining balance fees and expenses of the Identified Matters Escrow Amount Accounting Expert shall be released to borne by Parent and shall not constitute an Escrow Liability for purposes of calculating the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow AgreementNet Distributable Amount.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 2 contracts
Sources: Merger Agreement (Micron Electronics Inc), Merger Agreement (Interland Inc)
Escrow. (i) Notwithstanding At the provisions of Section 2.6(a)Closing, as security for certain of PEGC I OP shall cause the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Escrowed Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing be deposited into an escrow account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released established pursuant to the Parties according Escrow Agreement, with such Escrowed Consideration to be held in the Escrow Account as a source of funds for any amounts owing to any PEGC I Indemnitees under (and subject to the terms limitations in) Article X and conditions of an escrow agreement dated as Section 8.01(a).
(a) On the first (1st) anniversary of the Closing Date by and among (the “Termination Date”), the Escrow Agent, Parent and Agent shall deliver to PELP (for the Stockholder Representative on behalf benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith Contributors) all OP Units then held by the Escrow Agent, Parent Agent in the Escrow Account in excess of the Statute of Limitations Escrow Amount and (b) on the Stockholder Representative date that is thirty (30) days after the expiration of the applicable statute of limitations for the representations and warranties relating to Taxes contained in Section 3.15 and Section 3.25 (the “Escrow AgreementStatute of Limitations Termination Date”).
, the Escrow Agent shall deliver to PELP (iifor the benefit of the Contributors) An amount equal to Five Million Dollars ($5,000,000) (all OP Units then held by the “Documentation Escrow Amount”) shall be allocated from Agent in the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”)Account; provided, however, that nothing contained herein shall prevent if prior to the Termination Date or, as applicable, the Statute of Limitations Termination Date, PEGC I OP notifies the Escrow Agent in writing that all or a Parent portion of the OP Units then remaining in the Escrow Account are subject to claims for indemnification properly made in accordance with this Agreement that have not been finally determined as of such date (including any potential Third-Party Claim referred to in Section 10.05, whether or not such claim has actually been made or threatened against the Indemnified Party’s recovery from ) (the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date“Outstanding Claims”), the then-remaining balance number of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released OP Units delivered to the Stockholder Representative PELP (or its designee) for the benefit of the Executing StockholdersContributors) upon the Termination Date shall be equal to the number of OP Units then held by the Escrow Agent in the Escrow Account, less the Executing Option Holders and Non-Owner Participants, number of OP Units equal to the sum of any amounts subject to the terms and conditions Outstanding Claims divided by the Implied Valuation (rounded up to the nearest whole number). If at any time after the Termination Date or Statute of Limitations Termination Date, as set forth applicable, the number of OP Units then held by the Escrow Agent in the Escrow Agreement.
Account exceeds the number of OP Units equal to the sum of any amounts subject to the Outstanding Claims divided by the Implied Valuation (iv) Thirty-six (36) months following rounded up to the Closing Datenearest whole number), the then-remaining balance Contributors’ Representative and PEGC I OP shall execute and deliver a certificate requesting the Escrow Agent to deliver such excess number of the Documentation Escrow Amount shall be released OP Units to the Stockholder Representative PELP (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders Contributors) and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
Agent shall deliver to PELP (v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow AgreementContributors) such excess number of OP Units.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 2 contracts
Sources: Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.), Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.)
Escrow. (i) Notwithstanding 4.1 For the provisions purpose of Section 2.6(a)the transactions contemplated in this Agreement, the Parties agree to appoint JunZeJun Law Offices, as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. third party escrow agent (the “Escrow Agent”)) and an Escrow Services Agreement will be signed simultaneously with the execution of this Agreement in a form and substance as set forth in Exhibit 4.1. The Escrow Amount Services Agreement shall be released include a provision stating that (i) in the event Chengshan exercises the Chengshan Call Option, the Escrow Agent shall insert a number that is equal to the Parties according to the terms and conditions of an escrow agreement dated as 65% of the Closing Date Option Price into the blank space in the definition of the Purchase Price under Section 1.2 of the Chengshan Equity Transfer Agreement as the Purchase Price, and shall fill in the dates of the Chengshan Equity Transfer Agreement, and the executed board resolutions and shareholder resolutions included in the Transaction Documents for Chengshan Group’s Purchase, and (ii) in the event Chengshan exercises the Chengshan Put Option or Cooper exercises the Cooper Option, then the Escrow Agent shall insert a number that is equal to 35% of the Option Price into the blank space in the definition of the Purchase Price under Section 1.2 of the Cooper Equity Transfer Agreement as the Purchase Price and shall fill in the dates of the Cooper Equity Transfer Agreement, and the executed board resolutions and shareholder resolutions included in the Transaction Documents for ▇▇▇▇▇▇’▇ Purchase.
4.2 Simultaneously with the signing of this Agreement, Chengshan and Cooper shall deliver executed copies of undated Transaction Documents for Chengshan Group’s Purchase, Transaction Documents for ▇▇▇▇▇▇’▇ Purchase, Withdraw Documents for Chengshan Group’s Purchase, Withdraw Documents for ▇▇▇▇▇▇’▇ Purchase, Unwinding Documents for Chengshan Group’s Purchase, and Unwinding Documents for ▇▇▇▇▇▇’▇ Purchase (each as defined below), in each case executed by and among all the parties thereto, to the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholdersto be held in escrow.
4.2.1 The following documents (collectively, the Executing Option Holders “Transaction Documents for Chengshan Group’s Purchase”) will be placed into escrow and Non-Owner Participantsreleased in accordance with Article 4.3.1 below:
(a) an agreement, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (substance as the “Escrow Agreement”).
Agreement for The Transfer of Equity Interest in ▇▇▇▇▇▇ Chengshan (iiShandong) An amount equal to Five Million Dollars ($5,000,000Tire Company Limited” attached hereto as Exhibit 4.2.1(a) (the “Documentation Escrow AmountChengshan Equity Transfer Agreement”) shall be allocated from in connection with the Indemnification Escrow Amount to address Losses purchase of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount ▇▇▇▇▇▇’▇ interest in respect of indemnification claims made pursuant to Article IX.CCT by Prairie;
(iiib) Eighteen (18) months following a TBR Offtake Agreement between CCT and CTB in the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders form and Non-Owner Participants, subject to the terms and conditions substance as set forth in the Escrow Agreement.Exhibit 4.2.1(b);
(ivc) Thirty-six (36) months following a PCR Offtake Agreement between CCT and CTB in the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders form and Non-Owner Participants, subject to the terms and conditions substance as set forth in the Escrow Agreement.Exhibit 4.2.1(c);
(vd) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution a termination agreement between CCT and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) CTB for the benefit of Trademark License Agreement dated October 27, 2005 by and among CCT and CTB in the Executing Stockholders, Executing Option Holders form and Non-Owner Participants, subject to the terms and conditions substance as set forth in the Escrow Agreement.Exhibit 4.2.1(d);
(vie) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) a termination agreement between CCT and CTB for the benefit of Technical Assistance and Technology License Agreement dated October 27, 2005 by and among CCT and CTB in the Executing Stockholders, the Executing Option Holders form and Non-Owner Participants, subject to the terms and conditions substance as set forth in Exhibit 4.2.1(e);
(f) a termination notice from CTBX Company to CCT for the Escrow Secondment Agreement dated February 4, 2006 by and among CTBX Company and CCT in the form and substance as set forth in Exhibit 4.2.1(f);
(g) a patent and domain name assignment agreement between CCT and CTB in the form and substance as set forth in Exhibit 4.2.1(g);
(h) a transition service agreement in the form and substance as set forth in Exhibit 4.2.1(h);
(i) the board resolutions by Prairie and the board resolutions by Cooper approving the execution of Chengshan Equity Transfer Agreement; and
(j) a board resolution of CCT approving the transactions contemplating under the Chengshan Equity Transfer Agreement.
4.2.2 The following documents (vii) If applicablecollectively, the then-remaining balance of the JV Buyout Escrow Amount shall “Transaction Documents for ▇▇▇▇▇▇’▇ Purchase”) will be paid or placed into escrow and released in accordance with Section 7.16Article 4.3.2 below:
(a) an agreement, subject to in form and substance as the terms “Agreement for The Transfer of Equity Interest in Cooper Chengshan (Shangdong) Tire Company Limited” attached hereto as Exhibit 4.2.2(a) (the “Cooper Equity Transfer Agreement”, and, together with the Chengshan Equity Transfer Agreement, the “Equity Transfer Agreement”) in connection with the purchase of Chengshan’s interest in CCT by Cooper,
(b) a transition services agreement in the form and conditions substance as set forth in Exhibit 4.2.2(b);
(c) a patent assignment agreement between CCT and Chengshan in the Escrow form and substance as set forth in Exhibit 4.2.2(c);
(d) a termination agreement in the form and substance as set forth in Exhibit 4.2.2(d);
(e) the shareholders’ meeting resolutions by Chengshan and the board resolutions by Cooper approving the execution of Cooper Equity Transfer Agreement; and
(f) a board resolution of CCT approving the transactions contemplating under the Cooper Equity Transfer Agreement.
4.2.3 The following documents (viiithe “Withdraw Documents for Chengshan Group’s Purchase”) When paid will be placed into escrow and released in accordance with Section 2.6(c)(ivArticle 4.4:
(a) a Petition for Withdrawing the Application in the form and substance as set forth in Exhibit 4.2.3(a).
4.2.4 The following documents (the “Withdraw Documents for ▇▇▇▇▇▇’▇ Purchase”) will be placed into escrow and released in accordance with this Article 4.5:
(a) a Petition for Withdrawing the Application in the form and substance as set forth in Exhibit 4.2.4(a).
4.2.5 The following documents (the “Unwinding Documents for Chengshan Group’s Purchase”) will be placed into escrow and released in accordance with Article 4.6:
(a) an Application for Unwinding of the Approval in the form and substance as set forth in Exhibit 4.2.5(a).
4.2.6 The following documents (the “Unwinding Documents for ▇▇▇▇▇▇’▇ Purchase”) will be placed into escrow and released in accordance with Article 4.7:
(a) an Application for Unwinding of the Approval in the form and substance as set forth in Exhibit 4.2.6(a).
4.3 Upon the receipt by the Escrow Agent of either Chengshan’s Exercise Notice or ▇▇▇▇▇▇’▇ Exercise Notice, the Escrow Agent shall immediately release to the Parties original copies of the following documents:
4.3.1 if Chengshan exercises Chengshan’s Call Option, the Chengshan Equity Transfer Agreement (i.e., Article 4.2.1(a)) and the executed board resolutions included in the Transaction Documents for Chengshan Group’s Purchase (i.e., Article 4.2.1(i) and 4.2.1(j)); or
4.3.2 if Chengshan exercises Chengshan’s Put Option or ▇▇▇▇▇▇ exercises ▇▇▇▇▇▇’▇ Option, the ▇▇▇▇▇▇ Equity Transfer Agreement (i.e., Article 4.2.2(a)) and the executed board resolutions and shareholder resolutions included in the Transaction Documents for ▇▇▇▇▇▇’▇ Purchase (i.e., Article 4.2.2 (e) and 4.2.2 (f)).
4.4 Upon the receipt by the Escrow Agent of the ▇▇▇▇▇▇ Withdraw Notice (as defined below), Parent the Escrow Agent shall be deemed immediately release to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share Cooper original copies of the Withdraw Documents for Chengshan Group’s Purchase set out in Article 4.2.3.
4.5 Upon receipt by the Escrow Account. Notwithstanding anything herein Agent of the Chengshan Group Withdraw Notice (as defined below), the Escrow Agent shall immediately release to Chengshan original copies of the Withdraw Documents for ▇▇▇▇▇▇’▇ Purchase set forth in Section 4.2.4.
4.6 Upon receipt by the Escrow Agent of the ▇▇▇▇▇▇ Unwinding Notice (as defined below), the Escrow Agent shall immediately release to Cooper original copies of the Unwinding Documents for Chengshan Group’s Purchase set forth in Section 4.2.5.
4.7 Upon receipt by the Escrow Agent of the Chengshan Group Unwinding Notice(as defined below), the Escrow Agent shall immediately release to Chengshan original copies of the Unwinding Documents for ▇▇▇▇▇▇’▇ Purchase set forth in Section 4.2.6.
4.8 The Party that is purchasing the other Party’s equity interest in CCT shall provide such other Party and the Escrow Agent written notice indicating that the conditions for Closing (as defined in the applicable Equity Transfer Agreement) set forth in Article 2 of the applicable Equity Transfer Agreement have been satisfied (other than those conditions that by their nature are to be satisfied at the Closing (as defined in the applicable Equity Transfer Agreement), but subject to the contraryfulfillment or waiver of those conditions), any within 5 business days (which shall not be subject to the Cure Period) of the satisfaction of such amounts payable from conditions. Such notice shall include a copy of CCT’s newly issued business license reflecting the transfer of equity. Upon the receipt of such written notice, the Escrow Account and any amounts payable from Agent shall release simultaneously with the Stockholder Representative Reserve to or for closing of the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay equity transfer transaction contemplated in the applicable recipient Equity Transfer Agreement the amount original copies of all the remaining documents from either the Transaction Documents for Chengshan Group’s Purchase, in the event that Prairie is the purchaser, or the Transaction Documents for ▇▇▇▇▇▇’▇ Purchase, in the event that ▇▇▇▇▇▇ is the purchaser, to which he Chengshan and ▇▇▇▇▇▇.
4.9 Upon the earliest of (a) both Chengshan and ▇▇▇▇▇▇ failing to properly exercise Chengshan’s Option or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve▇▇▇▇▇▇’▇ Option, as applicable, before all such Options expire pursuant to the terms of this Agreement, (b) through written notice from ▇▇▇▇▇▇ or Chengshan if the CompanyOption Commencement Date has not occurred on or before the Option Commencement Deadline, (c) written instructions from ▇▇▇▇▇▇ and Chengshan, (d) 10 calendar days after release by the Escrow Agent of the documents in Article 4.8, or (e) the termination of this Option Agreement in accordance with Article 6, the Escrow Agent shall destroy all other remaining Transaction Documents for Chengshan Group’s payrollPurchase, Transaction Documents for ▇▇▇▇▇▇’▇ Purchase, Withdraw Documents for Chengshan Group’s Purchase, Withdraw Documents for ▇▇▇▇▇▇’▇ Purchase, Unwinding Documents for Chengshan Group’s Purchase, and Unwinding Documents for ▇▇▇▇▇▇’▇ Purchase which have not been previously released.
4.10 For the purpose of this Article 4, the release of the documents by the Escrow Agent to ▇▇▇▇▇▇ or Chengshan shall be delivered to the following addresses, or to such other address as may be hereafter designated in writing on seven (7) days’ notice by the relevant Party: CHENGSHAN Address: ▇▇. ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, PRC Tel: ▇▇▇▇-▇▇▇▇▇▇▇ Fax: ▇▇▇▇-▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Address: ▇/▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ World Office 1, ▇▇.▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇. Tel: ▇▇▇▇-▇▇▇▇▇▇▇▇ Fax: ▇▇▇▇-▇▇▇▇▇▇▇▇ Attn: Partner-in-Charge
Appears in 2 contracts
Sources: Option Agreement, Option Agreement (Cooper Tire & Rubber Co)
Escrow. (ia) Notwithstanding the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall Fund A will be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith held by the Escrow Agent, Parent and Agent until no later than five (5) Business Days after the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Settlement Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in of the Escrow Agreement, and will be disbursed, solely for the purposes and in accordance with the terms of this Agreement and the Escrow Agreement, as follows:
(i) in the event that the Closing Cash Difference is owed by Seller, (i) to Buyer, in an amount equal to the lesser of (A) Escrow Fund A and (B) the sum of the Closing Cash Difference plus the Final Retention Incentive Plan Amount, and (ii) to Seller, the balance, if any, of Escrow Fund A not otherwise distributed to Buyer;
(ii) in the event that the Closing Cash Difference is owed by Buyer, (i) to Seller, the amount equal to the lesser of (A) Escrow Fund A and (B) the total of the Closing Cash Difference plus Escrow Fund A less the Final Retention Incentive Plan Amount, and (ii) to Buyer, the balance, if any, of Escrow Fund A not otherwise distributed to Seller; or
(iii) in the event that the Closing Cash Difference is equal to zero, (i) to Buyer, the lesser of (A) Escrow Fund A and (B) the Final Retention Plan Amount, and (ii) to Seller, the balance, if any, of Escrow Fund A not otherwise distributed to Buyer.
(ivb) Thirty-six The Stay Bonus/CIC Amount will be held by the Escrow Agent until no later than thirty (3630) months following days after the eighteen (18) month anniversary of the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in of the Escrow Agreement., and will be disbursed, solely for the purposes and in accordance with the terms of this Agreement and the Escrow Agreement, as follows:
(vi) Upon the earlier of if (A) any Banner Company incurs an obligation to pay a stay bonus pursuant to any Change of Control Agreement Amendment or (B) Seller owes any amount to Buyer in accordance with Section 7.21, Buyer may certify in writing to Seller such amounts owed. Unless Seller objects in writing to such certification within five (5) years following Business Days after receipt thereof, such certification shall be deemed final, and Buyer and Seller shall instruct the Closing Date or (B) the final resolution and settlement of all matters and Actions related Escrow Agent to the Identified Mattersdisburse to Buyer, the then-remaining balance amount so certified. If Seller so objects to such certified amount, Seller and Buyer shall promptly endeavor in good faith to resolve any such objection for a period of fifteen (15) days and if no resolution is reached thereafter, the Identified Matters Escrow Amount objection shall be released to resolved by an Independent Accounting Firm in accordance with the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as dispute resolution procedures set forth in Section 2.3. Upon such resolution, Seller and Buyer shall jointly instruct the Escrow Agreement.Agent to disburse to Buyer, the portion of the Stay Bonus/CIC Amount to which Buyer is entitled, as determined through such resolution;
(viii) On within five (5) Business Days after the Adjustment Payment eighteen (18) month anniversary of the Closing Date, Buyer shall certify in writing to Seller the then-remaining balance aggregate amount of all stay bonuses owing by the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent Banner Companies pursuant to Section 2.7(b)) shall be released the Change of Control Agreement Amendments which have not been paid as of such date and the aggregate amount of all claims that have been made alleging the Banner Companies’ failure to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, pay any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.stay bonuses when
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Patheon Inc)
Escrow. (ia) Notwithstanding The Escrow Deposit and Additional Escrow Deposit shall be commingled and deposited by the Escrow Agent in an interest-bearing, attorney trust account in a bank reasonably selected by Escrow Agent to be maintained and disbursed in accordance with the provisions hereof. If, prior to expiration of Section 2.6(athe Inspection Period, as such term is defined in paragraph 7(a) of this Agreement, the Escrow Agent receives the Inspection Termination together with the Inspection Report(s), as security for certain such terms are defined in paragraph 7(a) of this Agreement, then within five (5) days of receipt thereof, the Escrow Agent shall refund the Escrow Deposit and Additional Escrow Deposit together with one-half (1/2) of the indemnification obligations interest accrued thereon, to the Buyer. If, upon expiration of the Executing StockholdersInspection Period, as such term is defined in paragraph 7(a) of this Agreement, the Executing Option Holders Escrow Agent has not received the Inspection Termination and/or Inspection Report(s) then and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amountthat event, the Adjustment Escrow Amount and, if applicable pursuant Agent shall continue to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among hold the Escrow Agent, Parent Deposit and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, Additional Escrow Deposit in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) escrow for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner ParticipantsSeller, subject to the terms and conditions as set forth in right of the Buyer to have the Escrow Deposit and Additional Escrow Deposit returned to the Buyer, only if, prior to expiration of the Environment Due Diligence Period, as defined in paragraph 7(b) of this Agreement, or Extended Environmental Due Diligence Period, if applicable, as defined in paragraph 7(b)(i) of this Agreement, the Escrow Agent has received the Environmental Termination, together with the Environmental Certification and Environmental Study (all as defined in paragrpah 7(b) of this Agreement). If, prior to expiration of the Environmental Due Diligence Period, or prior to expiration of the Extended Environmental Due Diligence Period, if applicable, the Escrow Agent receives the (Final) Environmental Certification, (Final) Environmental Study and the (Final) Environmental Termination as defined in paragraph 7(b) or 7(b)(i), if applicable, of this Agreement, then within five (5) days of receipt thereof, the Escrow Agent shall refund the Escrow Deposit and Additional Deposit together with one-half (1/2) of the interest accrued thereon to the Buyer. If, upon expiration of the Environmental Due Diligence Period or Extended Environmental Due Diligence Period, the Escrow Agent has not received the Inspection Termination together with the Inspection Reports, then within five (5) days after expiration of the Environmental Due Diligence Period or the Extended Environmental Due Diligence Period, the Escrow Agent shall deliver the Escrow Deposit and Additional Escrow Deposit together with one-half (1/2) of the interest accrued thereon to the Seller.
(ivb) Thirty-six (36) months following Without the Closing Dateconsent of the Buyer and Seller, the then-remaining balance Escrow Agent shall not release the Escrow Deposit to any party. In the event that any party requests in writing that the Escrow Agent deliver the Escrow Deposit and/or the Additional Escrow Deposit to such party, the Escrow Agent shall make a written request for the consent of the Documentation other party and in such written request notify such party that unless an objection is made in writing to the release of the Escrow Amount shall Deposit and/or the Additional Escrow Deposit, within ten (10) days of the non-consenting party's receipt of such notice, the Escrow Deposit and/or the Additional Escrow Deposit will be released to the Stockholder Representative (or its designee) for party requesting the benefit Escrow Deposit and/or Additional Escrow Deposit. If the Escrow Agent receives a written objection to the release of the Executing StockholdersEscrow Deposit and/or the Additional Escrow Deposit, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in Escrow Agent shall make no disbursement of the Escrow Agreement.
(v) Upon Deposit and/or the earlier Additional Escrow Deposit until so authorized in a writing, signed by both the Buyer and Seller or by a final non-appealable order of (A) five (5) years following the Closing Date or (B) the final resolution a court of competent jurisdiction, and settlement in either of all matters and Actions related to the Identified Matterssuch events, the then-remaining balance of the Identified Matters Escrow Amount Agent shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in then disburse the Escrow Agreement.
(vi) On Deposit and/or the Adjustment Payment Date, the then-remaining balance of the Adjustment Additional Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released Deposit in accordance with Section 7.16, subject to the terms and conditions as set forth in notice or the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserveorder, as applicable) through . No fee or other charges shall be payable to Escrow Agent by the Company’s payrollBuyer unless an interpleader is filed by Escrow Agent, in which event Buyer shall pay such fees as directed by the Court. Escrow Agent shall not be liable to either party hereunder for any act undertaken in good faith and without fraud or gross negligence on its part. The parties acknowledge that the Escrow Agent is acting in this capacity solely as a stakeholder for the convenience of the parties. In the event of any conflict, the Escrow Agent may institute an interpleader action with respect to the Escrow Deposit and/or the Additional Escrow Deposit. The parties acknowledge and agree that notwithstanding the Escrow Agent's role as Escrow Agent, that the Escrow Agent is counsel to the Seller and may continue to be counsel to the Seller in the event of any dispute, including litigation relating to the Escrow Deposit and/or Additional Deposit or relating to any other matter.
Appears in 2 contracts
Sources: Sale Agreement (Cunningham Graphics International Inc), Sale Agreement (Cunningham Graphics International Inc)
Escrow. (a) Concurrently with the execution and delivery of this Agreement, Parent and the Company have entered into an escrow agreement, in the form attached hereto as Exhibit F (the “Escrow Agreement”), with Wilmington Trust, National Association, as escrow agent (the “Escrow Agent”), pursuant to which, among other things, Parent shall (i) Notwithstanding concurrently with the provisions execution and delivery of Section 2.6(a)this Agreement, as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) deposit an amount of in cash equal to Fifteen Million Dollars ($15,000,000) (10,000,000 into a segregated escrow account established by the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts Agent (the “Escrow Account”) with U.S. Bankand (ii) subsequent to the execution and delivery of this Agreement, N.A. deposit amounts in cash into the Escrow Account such that, on or before 5:00 p.m. Central Time on January 23, 2024, the aggregate funds contained in the Escrow Account as of such time is equal to $20,000,000 (the “Full Escrow Funding”), in each case, for the purpose of funding Parent’s obligations under this Agreement, including Section 8.3(b)(iv).
(b) Distributions of funds contained in the Escrow Account (the “Escrow AgentFunds”). The Escrow Amount ) shall be released to occur as follows:
(i) if the Parties according to Effective Time occurs and the transactions contemplated hereby are consummated in accordance with the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agenthereof, Parent and the Stockholder Representative on behalf Company shall deliver join written instructions to the Escrow Agent instructing the Escrow Agent to distribute from the Escrow Account all of the Executing StockholdersEscrow Funds, by wire transfer of immediately available funds to the account(s) designated in such instructions, to the Paying Agent for the inclusion of such Escrow Funds in the Payment Fund (and, for the avoidance of doubt, the Executing Option Holders and Non-Owner Participants, in Escrow Funds will be deemed to be a reasonable form mutually agreed part of the Payment Fund upon in good faith receipt by the Paying Agent);
(ii) if this Agreement is terminated in accordance with the terms hereof the Company is entitled to receive the Closing Failure Fee in accordance with Section 8.3(b)(iv), then the Company and Parent shall deliver joint written instructions to the Escrow AgentAgent instructing the Escrow Agent to distribute from the Escrow Account all of the Escrow Funds, Parent by wire transfer of immediately available funds to the account(s) designated in such instructions, to the Company in satisfaction of Parent’s obligations under Section 8.3(b)(iv); and
(iii) if this Agreement is terminated in accordance with the terms hereof and the Stockholder Representative Company is not entitled to receive the Closing Failure Fee in accordance with Section 8.3(b)(iv), then the Company and Parent shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to distribute from the Escrow Account all of the Escrow Funds, by wire transfer of immediately available funds to the account(s) designated in such instructions, to Parent (the “Escrow Agreement”or its designee).
(iic) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation The Escrow Amount”) Funds shall be allocated from held by the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply Agent in accordance with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance Agreement. Distributions of the Indemnification Escrow Amount, less the Documentation Escrow Amount, Funds shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders made as provided in this Section 8.4 and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 2 contracts
Sources: Merger Agreement (Battalion Oil Corp), Merger Agreement (Battalion Oil Corp)
Escrow. (ia) Notwithstanding Buyer will deliver the provisions Escrowed Funds by wire transfer of Section 2.6(a)immediately available funds to the Escrow Agent on the Closing Date, as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent which shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing be deposited into an interest-bearing escrow account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount which shall be released established pursuant to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
, which Escrow Agreement (ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”x) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following entered into on the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Mattersamong Buyer, the then-remaining balance of Sellers’ Representative and the Identified Matters Escrow Amount Agent, and (y) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth substantially in the form of Exhibit D attached hereto. The Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of Agent will hold the Adjustment Escrow Amount until the Final Adjustment Date and shall release the Adjustment Escrow Amount in accordance with the provisions set forth in Sections 3.2(c) and (after deducting d). The Escrow Agent will hold the net amountIndemnity Escrow Amount until the Indemnity Survival Date and shall release the Indemnity Escrow Amount in accordance with the provisions set forth in Article X (and Section 3.2, if any, applicable).
(b) The parties agree for all Tax purposes that is payable Buyer shall be treated as the owner of the Escrowed Funds and all interest and earnings earned from the investment and reinvestment of the Escrowed Funds shall be allocable to Parent Buyer pursuant to Section 2.7(b)468B(g) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders Code and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreementproposed Treasury Regulation Section 1.468B-8.
(viic) If applicable, the then-remaining balance of the JV Buyout The Escrow Amount Agent shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable make quarterly distributions from the Escrow Account to Buyer (a “Tax Distribution”) intended to reimburse Buyer for Buyer’s income Tax Liabilities pertaining to the Escrowed Funds. Such Tax Distribution shall be equal to 40% of the interest and any amounts payable earnings from the Stockholder Representative Reserve to or investment and reinvestment of the Escrowed Funds for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but quarterly period in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollquestion.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (WHITEWAVE FOODS Co)
Escrow. (ia) Notwithstanding the provisions of Section 2.6(a2.02, Purchaser shall deliver to the Escrow Agent a portion of the Closing Cash Payment otherwise deliverable to Sellers pursuant to Section 1.02(a) equal to the sum of Thirty Five Million Dollars ($35,000,000) (the “Escrow Amount”). Of the Escrow Amount, (i) Ten Million Dollars ($10,000,000) shall secure Sellers’ obligation for the Working Capital adjustment described in Section 2.04 (the “Working Capital Escrow Amount”), as security for certain of and (ii) Twenty Five Million Dollars ($25,000,000) shall secure the indemnification and other obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants Seller Parties set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) Agreements (the “Indemnification General Escrow Amount”). In addition, (ii) an amount at the Closing, Purchaser shall deliver to the Escrow Agent, on behalf of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow AmountSellers, the Adjustment Escrow Amount andNotes in the original issue amount, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts be held in escrow as provided below.
(the “Escrow Account”b) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to held in escrow (the Parties according to “Escrow”) in accordance with the terms and conditions of an escrow agreement dated agreement, substantially in the form attached hereto as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative Exhibit B (the “Escrow Agreement”).
(ii) An . Any amount equal to Five Million Dollars ($5,000,000) (remaining of the “Documentation Escrow Amount”) shall be allocated from the Indemnification Working Capital Escrow Amount to address Losses after settlement of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made Working Capital adjustment pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, Section 2.04 shall be released to the Stockholder Sellers’ Representative (or its designee) as nominee for the benefit account of Trust 1 and for the account of Trust 2) upon such settlement as provided therein; and any amount remaining of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the General Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance Amount after settlement of the Documentation Escrow Amount Seller Parties’ indemnification obligations pursuant to Article 10 shall be released to the Stockholder Sellers’ Representative (or its designee) as nominee for the benefit account of Trust 1 and for the Executing Stockholders, account of Trust 2) on the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
date that is twenty four (v24) Upon the earlier of (A) five (5) years following months after the Closing Date or on such later date as is necessary to resolve any disputes with respect to such amounts, except that any amounts retained after the date that is twenty four (B24) months after the final resolution and settlement Closing Date shall only consist of all matters and Actions related those amounts which are necessary to satisfy the then pending claims for indemnification payable by the Seller Parties (assuming for these purposes only the validity of each such claim), with the remaining amounts released as aforesaid.
(c) The Notes delivered to the Identified Matters, Escrow Agent as provided in Section 2.03(a) shall be held in the thenEscrow and shall be available for set-remaining balance off pursuant to Section 10.08(b). Sellers shall have the right to convert their Notes into Common Stock pursuant to the terms of the Identified Matters Notes, in which case all such Common Stock shall be delivered to and held in the Escrow, and further shall have the right to sell any of such Common Stock held in the Escrow, provided, that upon any such sale 50% of the proceeds of such sale shall be delivered to and held in Escrow Amount in lieu of such Common Stock to the extent so converted and 50% of such proceeds shall be released to the Stockholder Representative (or its designee) for applicable Seller; provided, that in no event will the benefit proceeds of any such sale held in Escrow pursuant to the foregoing provision exceed $75 million in the aggregate. Any remaining amount of the Executing StockholdersNotes, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance Common Stock or cash after settlement of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent Seller Parties’ indemnification obligations pursuant to Section 2.7(b)) Article 10 shall be released to the Stockholder Sellers’ Representative (or its designee) as nominee for the benefit account of Trust 1 and for the account of Trust 2) on the date that is twenty four (24) months after the Closing Date or on such later date as is necessary to resolve any disputes with respect to such amounts, except that any amounts retained after the date that is twenty four (24) months after the Closing Date shall only consist of those amounts which are necessary (taking into consideration any cash amounts retained pursuant to paragraph (b) above) to satisfy the then pending claims for indemnification payable by the Seller Parties (assuming for these purposes only the validity of each such claim), with the remaining amounts released as aforesaid. For purposes of determining the number of shares of Common Stock required to satisfy a claim for indemnification, the value of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance Common Stock into which all or any portion of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent Notes are converted shall be deemed to have contributed on behalf be the higher of each Executing Stockholder(i) the price at which the Notes were converted into such Common Stock and (ii) the market price for such Common Stock prevailing at the time the securities are released to Purchaser in satisfaction of a claim; provided, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share that for purposes of the Escrow Account. Notwithstanding anything herein $175 million limit provided in Section 10.07(a) of this Agreement, such value as so determined pursuant to the contraryforegoing provisions will be credited against such $175 million if and to the extent that shares of Common Stock are so used to satisfy a claim for indemnification.
(d) With due regard to the limitations on liability contained in Article 10, nothing in this Agreement shall be construed as limiting any such amounts payable Seller Party’s liability for the Working Capital adjustment to the Working Capital Escrow Amount or for Purchaser Losses to the General Escrow Amount and/or the Notes, nor shall payments from the Escrow Account and Amount be considered as liquidated damages for any amounts payable from the Stockholder Representative Reserve to breach under this Agreement or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollother Transaction Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (FriendFinder Networks Inc.), Stock Purchase Agreement (FriendFinder Networks Inc.)
Escrow. (i) Notwithstanding On the provisions of Section 2.6(a)Closing Date, Sunlight Supply, Buyer and ▇▇▇▇▇ Fargo Bank, National Association, a national banking association, as security for certain of the indemnification obligations of the Executing Stockholdersescrow agent (including its successors and permitted assigns in such capacity, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of ) will enter into an escrow agreement dated as agreement, substantially in the form of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative Exhibit B (the “Escrow Agreement”).
. Sellers on the one hand, and Buyer, on the other hand, will each pay 50% of all fees and expenses of the Escrow Agent in connection with the Escrow Agreement. Sellers and Buyer agree that, for Tax reporting purposes, all interest or other income from investment of such escrowed assets will, as of the end of each calendar year and to the extent required by the IRS, be reported as having been earned by Sunlight Supply, and, in accordance with the terms of the Escrow Agreement, the Escrow Agent will release to Sunlight Supply from the accounts established by the Escrow Agent pursuant to the Escrow Agreement (the “Escrow Accounts”) funds sufficient to pay such Tax Liability. In accordance with the terms of the Escrow Agreement, (a) on the first Business Day immediately following the nine-month anniversary of the Closing Date (the “First Release Date”), the Escrow Agent shall release and pay to Sunlight Supply out of the Escrow Account an amount equal to (i) 25% of the funds deposited in escrow less (ii) An the sum of (A) all payments out of the Escrow Account made by the First Release Date and (B) an amount equal to Five Million Dollars the maximum aggregate amount of any unresolved claims for indemnification pursuant to Article VIII hereof on the First Release Date; ($5,000,000b) on the first Business Day immediately following the 15-month anniversary of the Closing Date (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation MattersSecond Release Date”); provided, however, that nothing contained herein the Escrow Agent shall prevent a Parent Indemnified Party’s recovery from release and pay to Sunlight Supply out of the Indemnification Escrow Amount Account an amount equal to (i) 25% of the funds deposited in respect escrow less (ii) the sum of (A) all payments out of the Escrow Account made by the Second Release Date and (B) an amount equal to the maximum aggregate amount of any unresolved claims for indemnification claims made pursuant to Article IX.
VIII hereof on the Second Release Date; and (iiic) Eighteen (18) months on the first Business Day immediately following the 18-month anniversary of the Closing Date (the “Final Release Date”), the Escrow Agent shall release and pay to Sunlight Supply the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth amount in the Escrow Agreement.
(iv) Thirty-six (36) months following Account, less an amount equal to the Closing maximum aggregate amount of any unresolved claims for indemnification pursuant to Article VIII hereof on the Final Release Date. The Parties agree that, to the extent any portion of the assets held in escrow are released to Sunlight Supply on the Second Release Date or any subsequent release date, the then-remaining balance release will first be comprised of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share portion of the Escrow AccountAmount that is represented by the beneficial ownership of the Stock Consideration and, only after all such Stock Consideration has been released, will any cash portion of the escrowed assets be released and further agree that any release from Escrow in favor of Buyer will be first in cash. Notwithstanding anything herein to The maximum aggregate amount of any unresolved claim shall be equal to, in the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit case of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed a claim by a Target Entity prior to or following Party, the Closing Date shall be paid to the Companymost recent amount claimed by such Party or, and the Company shall pay the applicable recipient for a Third-Party Claim, the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollclaimed by such third party.
Appears in 1 contract
Escrow. (ia) Notwithstanding At the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing StockholdersClosing, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall Purchaser will deposit such amounts at Closing into an escrow account or accounts (the “Escrow Account”) established for such purpose with U.S. Bank, N.A. The Bank of New York Mellon (the “Escrow Agent”). The Escrow Amount shall be released ) pursuant to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow AgentPurchaser, Parent and the Company, the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and in substantially the Stockholder Representative form attached hereto as Exhibit I (the “Escrow Agreement”).
, $22,500,000 of the Merger Consideration (less, if applicable, the Initial Shortfall Amount), consisting of ratable portions (based on the allocation of the Merger Consideration between the Cash Merger Consideration and the Shares Merger Consideration set forth herein) of the Cash Merger Consideration (the “Cash Escrow Deposit”), by wire transfer of immediately available funds into the Escrow Account, and the Shares Merger Consideration, valued at the Purchaser Stock Price (the “Escrowed Shares”), by delivery of the stock certificates representing such shares, along with stock powers executed in blank, to the Escrow Agent. The Cash Escrow Deposit, together with any interest and other income earned thereon (collectively, the “Escrowed Funds”), along with the Escrowed Shares (collectively, the “Escrowed Merger Consideration”), will be held in the Escrow Account to act as the exclusive source of payment of: (i) any Downward Post-Closing NWC Adjustment pursuant to Section 2.11(b); and (ii) An amount equal to Five Million Dollars the indemnification obligations ($5,000,000including Indemnified Taxes) of the Company Stockholders under Article VIII; provided that the indemnification obligations under Sections 8.2(a)(iv) and (the “Documentation Escrow Amount”v) shall may also be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount funded as provided in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing DateSection 2.12. In addition, the then-remaining balance Purchaser will be entitled to draw on $7,500,000 of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released Escrowed Merger Consideration to the Stockholder Representative (or its designee) for the benefit fund certain post-closing employment-related obligations of the Executing Stockholders, Company and of the Executing Option Holders and Non-Owner Participants, subject to Company Subsidiaries on the terms and conditions as set forth provided in the Escrow Agreement.
(ivb) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount Escrowed Shares and Escrowed Funds shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of ratably from the Escrow Account. For all purposes under the Escrow Account, the Escrowed Shares shall be valued at the Purchaser Stock Value. Notwithstanding anything herein to the contrarycontrary herein, any such amounts payable no fraction of an Escrowed Share shall be released from the Escrow Account and any amounts payable from all releases of Escrowed Shares shall be rounded to the nearest whole Escrowed Share.
(c) On the 12-month anniversary of the Closing Date (the “Initial Escrow Period Expiration Date”), an amount of Escrowed Merger Consideration equal in aggregate value to $7,500,000 (less, if applicable, the Initial Shortfall Amount) minus the sum of (i) the aggregate amount of unsatisfied or disputed claims for Losses specified in Indemnity Claim Notices delivered by the Purchaser to the Stockholder Representative Reserve to on or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to the Initial Escrow Period Expiration Date; and (ii) the aggregate amount of all satisfied claims for Losses paid to Purchaser Indemnified Parties on or following prior to the Initial Escrow Period Expiration Date, shall be released by the Escrow Agent from the Escrow Account to the Paying Agent (for further distribution by the Paying Agent to the Company Stockholders pursuant to Section 2.10(b)(iii)). On the 30-month anniversary of the Closing Date (the “Second Escrow Period Expiration Date”), an amount of Escrowed Merger Consideration equal to $15,000,000 (less, if applicable, the Initial Shortfall Amount) minus the amount of the Escrowed Merger Consideration previously released to the Paying Agent minus the aggregate amount of unsatisfied or disputed claims for Losses specified in Indemnity Claim Notices delivered to the Stockholder Representative between the Initial Escrow Period Expiration Date and the Second Escrow Period Expiration Date (such aggregate amount of unsatisfied or disputed claims for Losses, the “Pending Claims Amount”), shall be released by the Escrow Agent from the Escrow Account to the Paying Agent (for further distribution by the Paying Agent to the Company Stockholders pursuant to Section 2.10(b)(iii)). The Escrow Agent shall continue to hold the Pending Claims Amount corresponding to each claim for Losses until the final resolution of such claim, at which point, as and when such claim is resolved, the Escrow Agent shall release Escrowed Merger Consideration equal in value to the appropriate portion of the Pending Claims Amount to the Paying Agent (for further distribution by the Paying Agent to the Company Stockholders pursuant to Section 2.10(b)(iii)) and/or to the Purchaser, as the case may be, depending upon resolution of such claim. In addition, the Purchaser will be entitled to draw up to $7,500,000 of the Escrowed Merger Consideration to fund certain post-Closing employment-related obligations of the Company and of the Company Subsidiaries on the terms provided in the Escrow Agreement. Any Escrowed Merger Consideration remaining in the Escrow Account after the later of (i) resolution of the last to be resolved of such claim(s) for Losses and (ii) the fifth (5th) anniversary of the Closing Date shall be paid to released by the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release Escrow Agent from the Escrow Account or to the Paying Agent (for further distribution by the Paying Agent to the Company Stockholders pursuant to Section 2.10(b)(iii)).
(d) The Purchaser, the Company and the Stockholder Representative Reserveeach agree to promptly take commercially reasonable actions (including executing and delivering joint written instructions to the Escrow Agent) requested by the other to effect releases of Escrowed Merger Consideration from the Escrow Account, as applicable) through in each case in accordance with this Agreement and the Company’s payrollEscrow Agreement.
Appears in 1 contract
Sources: Merger Agreement (Earthlink Inc)
Escrow. The aggregate sum of €1,974,000 (i) Notwithstanding the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”) will be deposited by wire transfer of immediately available funds with Bank of Ireland (the “Escrow Agent”), and shall deposit such amounts at Closing into to be held in an escrow account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (managed and paid out by the “Escrow Agent”). The Escrow Amount shall be released to the Parties according Agent pursuant to the terms and conditions of an escrow agreement dated as of the Closing Date Escrow Agreement by and among the Escrow Agent, Parent Buyer, and the Stockholder Representative on behalf Sellers Agent, dated as of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative date of this Agreement (the “Escrow Agreement”).
(ii) An amount equal . Concurrently with the execution and delivery of the Escrow Agreement, and pursuant to Five Million Dollars ($5,000,000) (the “Documentation applicable provisions thereof, the Escrow Amount”) shall be allocated from Agent will establish the Indemnification Escrow Amount Account to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from hold the Indemnification Escrow Amount in respect of indemnification claims made trust pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance Escrow Agreement free and clear of any Liens or other claims of any creditor of any of the Indemnification parties. The Escrow Account will include the Indemnity Escrow Amount, which amount, plus any interest accrued thereon, will be payable to Sellers less any amounts paid or payable pursuant to claims asserted under SECTION 2.3(e), ARTICLE 8 and/or the Documentation Tax Deed, in accordance with the terms of this Agreement and the Escrow AmountAgreement. The Escrow Amount also includes €724,000, shall which will be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released Purchaser in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account Agreement and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall which will be paid to the Company, holders of the ▇▇▇▇▇▇ B Ordinary Shares that are subject to put and call option agreements (as amended by the B Acknowledgement & Waiver Letters) and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date holders of the release from non-convertible ▇▇▇▇▇▇ D Ordinary Shares that are subject to put and call option agreements (as amended by the Escrow Account or Stockholder Representative Reserve, as applicableD Acknowledgement & Waiver Letters) through on the Company’s payrollcompletion of the purchase of all such ▇▇▇▇▇▇ B Ordinary Shares and ▇▇▇▇▇▇ D Ordinary Shares by the Buyer.
Appears in 1 contract
Escrow. At the Closing, Parent shall pay to the Escrow Agent: (i) Notwithstanding an amount in cash equal to the provisions of Section 2.6(a), as security for certain of Initial Indemnity Escrow Deposit to secure the indemnification obligations of the Executing Stockholders, the Executing Option Effective Time Holders under Sections 6 and Non-Owner Participants set forth in 10 of this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow AmountIndemnity Escrow”), ; (ii) an amount of in cash equal to One Million Two Hundred Thousand Dollars the Accelerable Escrow Deposit to secure the indemnification obligations of the Effective Time Holders under Sections 6 and 10 of this Agreement ($1,200,000other than Section 10.2(a)(i)) (the “Adjustment Escrow AmountAccelerable Escrow”), ; and (iii) an amount of in cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable to secure any adjustments required pursuant to Section 7.161.10 (the “Adjustment Escrow” and, together with the JV Buyout Indemnity Escrow Amountand the Accelerable Escrow, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow AgentEscrow”). The Escrow Amount Amounts shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith held by the Escrow Agent, Parent Agent and disbursed by it solely for the purposes and in accordance with the terms of this Agreement and the Stockholder Representative terms of an Escrow Agreement in the form attached hereto as Exhibit C to be entered into by Parent, Securityholders’ Agent and the Escrow Agent (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (. The approval and adoption of this Agreement and approval of the “Documentation Escrow Amount”) shall be allocated from Merger by the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made Effective Time Holders pursuant to Article IX.
(iii) Eighteen (18) months following written consents evidencing the Closing DateRequired Merger Stockholder Vote, the then-remaining balance Joinder Agreements, the Warrant Surrender Agreements, the Option Termination Agreements and the Letters of Transmittal shall constitute approval by such Effective Time Holders, as specific terms of the Indemnification Escrow AmountMerger, less and the Documentation Escrow Amountirrevocable agreement of such Effective Time Holders to be bound by and comply with, shall be released to the Stockholder Representative (or its designee) for the benefit all of the Executing Stockholdersarrangements and provisions of this Agreement, including the Executing Option Holders withholding of the Escrow Amounts and Non-Owner Participants, subject to Expense Fund and the terms and conditions as indemnification obligations set forth in the Escrow AgreementSections 6 and 10 hereof.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Escrow. (a) At the Effective Time, Parent shall deposit (i) Notwithstanding the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. National Association (the “Escrow Agent”) for deposit into an escrow account (the “Indemnification Escrow Account”), and (ii) the Purchase Price Adjustment Escrow AmericasActive:12666190.14 Amount with the Escrow Agent for deposit into an escrow account (the “Purchase Price Adjustment Escrow Account”). The Escrow Amount Funds shall be released to the Parties according to governed by the terms and conditions of an escrow agreement dated as of the Closing Date to be entered into by and among Parent, the Securityholders’ Representative and the Escrow Agent, Parent and such escrow agreement to be substantially in the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative attached hereto as Exhibit H (the “Escrow Agreement”).
(ii) An amount equal . Subject to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from Section 10.6, the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties Funds shall be held in escrow by the Escrow Agent until the date that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing is twelve (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (1812) months following the Closing Date (the “Indemnification Escrow Expiration Date”), the then-remaining balance and shall be available to settle certain contingencies and claims as provided in Section 3.5(e) and Article X. Each Indemnitor’s portion of any amounts contained in the Indemnification Escrow AmountFunds which are not paid or set aside for the satisfaction of such contingencies or claims will be determined and distributable to the Indemnitors in accordance with Sections 3.1, less 3.2 and 10.6(c) and the Documentation Escrow Amount, Agreement. The Purchase Price Adjustment Escrow Funds shall be held in escrow by the Escrow Agent until released to the Stockholder Representative (or its designeein accordance with Section 3.5(e) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(ivb) Thirty-six All parties hereto agree for all Tax purposes that (36i) months following the Closing Date, the then-remaining balance right of the Documentation holders of Company Shares to the Escrow Amount shall be released to the Stockholder Representative (or its designee) treated as deferred contingent purchase price eligible for the benefit installment sale treatment under Section 453 of the Executing StockholdersCode and any corresponding provision of foreign, state or local law, as appropriate and (ii) Parent shall be treated as the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in owner of the Escrow Agreement.
(v) Upon Amount solely for Tax purposes, and all interest and earnings earned from the earlier of (A) five (5) years following the Closing Date or (B) the final resolution investment and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance reinvestment of the Identified Matters Escrow Amount Amount, or any portion thereof, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable allocable to Parent pursuant to Section 2.7(b)468B(g) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Code and Proposed Treasury Regulations Section 1.468B-8. Any portion of the Executing proceeds payable with respect to any In the Money Vested Option Holders and that is not a Non-Owner Participants, subject to the terms Withholding Option and conditions as set forth held in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall Funds will be paid or released in accordance with Section 7.16, subject to withholding for income and employment Taxes at such time as the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be are paid to the Company, and holder of such In the Company Money Vested Options. All parties hereto shall pay file all Tax Returns consistent with the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollforegoing.
Appears in 1 contract
Sources: Merger Agreement (Hub Group, Inc.)
Escrow. (i) Notwithstanding a. The Escrow Agent is hereby authorized and directed to invest the provisions Escrowed Funds in the ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Savings Trust Account, or in such other obligations as are specified in written instructions signed by or on behalf of Section 2.6(a)Aetrium and the ▇▇▇▇▇▇▇▇ Representative.
b. Upon receipt by the Escrow Agent on or after December 31, as security for certain 2001 and on or prior to January 31, 2002 of written notice from Aetrium that Aetrium has exercised the Put Options, which notice will include wire transfer instructions, the Escrow Agent will promptly wire transfer to Aetrium the Escrowed Funds and all income then earned thereon.
c. In the event the Escrow Agent receives no such notice from Aetrium of exercise of the indemnification Put Options, then upon receipt by the Escrow Agent on or after February 1, 2002 of written notice from the ▇▇▇▇▇▇▇▇ Representative requesting disbursement of the Escrowed Funds, which notice will include wire transfer instructions, the Escrow Agent will promptly wire transfer the Escrowed Funds and all income then earned thereon in accordance with such instructions.
d. The duties and obligations of the Executing Stockholders, Escrow Agent will be determined solely by the Executing Option Holders express provisions of this Section 8 and Non-Owner Participants the Escrow Agent will not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”)Section. The Escrow Amount shall Agent will not be released responsible in any manner whatsoever for any failure or inability of Aetrium or the ▇▇▇▇▇▇▇▇ Representative or of anyone else to the Parties according to the terms and conditions of an escrow agreement dated as perform or comply with any of the Closing Date provisions of this Section or any other agreement. The Escrow Agent will not be bound by any modification, cancellation or rescission of the provisions of this Section unless in writing and among signed by it, Aetrium and the ▇▇▇▇▇▇▇▇ Representative .
e. In the performance of its duties hereunder, the Escrow Agent will be entitled to rely upon any document, instrument or signature believed by it to be genuine and signed by either of Aetrium, the ▇▇▇▇▇▇▇▇ Representative or their successors. The successor of either such party will be as set forth in a signature certificate delivered to the Escrow Agent, Parent in form satisfactory to the Escrow Agent. The Escrow Agent may assume that any person purporting to give any notice of instructions in accordance with the provisions hereof has been duly authorized to do so.
f. The Escrow Agent will not be liable for any error in judgment, or any action taken or omitted to be taken hereunder, including without limitation, for any loss or tax consequence resulting from any investment or any sale of any investment made hereunder, except in the case of its bad faith, willful misconduct or its own gross negligence. The Escrow Agent will be entitled to consult with counsel of its choosing and will not be liable for any action taken or omitted by it in accordance with the advice of such counsel. If the Escrow Agent is uncertain as to its duties or rights hereunder, or is of the opinion that there is a dispute hereunder, or is of the opinion that there is a dispute between Aetrium and the Stockholder ▇▇▇▇▇▇▇▇ Members arising out of or in connection with this Escrow Agreement, or receives instructions from Aetrium or the ▇▇▇▇▇▇▇▇ Representative on behalf with respect to the Escrowed Funds which, in its opinion, are in conflict with any of the Executing Stockholdersprovisions of this Section, the Executing Option Holders Escrow Agent will be entitled to refrain from taking any action until such time as there has been a final determination of the rights of Aetrium and Non-Owner Participantsthe ▇▇▇▇▇▇▇▇ Members with respect to the Escrowed Funds, or deposit the Escrowed Funds and all income earned thereon with any court of competent jurisdiction pending the final determination of any dispute among such parties.
g. The Escrow Agent will not be under any obligation to take any legal action in connection with this Section 8 or for its enforcement or to appear in, prosecute or defend any action or legal proceeding which, in its opinion, would or might involve it in any cost, expense, loss or liability, unless, and as often as required by it, it is furnished with security and indemnity satisfactory to it against all such costs, expenses, losses or liability.
h. The Escrow Agent or any successor to it as escrow agent hereafter appointed may at any time resign and be discharged of the duties imposed hereunder by giving notice to Aetrium and the ▇▇▇▇▇▇▇▇ Representative, such resignation to take effect upon the earlier of the appointment of a reasonable form mutually agreed upon in good faith successor escrow agent by Aetrium and the ▇▇▇▇▇▇▇▇ Representative, or ninety (90) days after the giving of such notice (provided that prior to the expiration of such 90-day period, the Escrow Agent has deposited the Escrowed Funds and all income earned thereon with the office of the clerk of the court of any court of competent jurisdiction).
i. Aetrium will reimburse the Escrow Agent for out-of-pocket expenses, including without limitation legal fees, postage, wire-transfer charges, disbursements and advances, incurred or made by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in Agent hereunder. Aetrium will indemnify the Escrow Agreement.
Agent and hold it harmless from any and all loss, liability, costs or expenses (ivincluding reasonable attorneys’ fees) Thirty-six (36) months following incurred without bad faith, willful misconduct or negligence on the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share part of the Escrow AccountAgent and arising out of or in connection with its acceptance of or the performance of its duties and obligations under this Section 8, which indemnification obligation will survive the resignation of the Escrow Agent or the termination of this Section 8. Notwithstanding anything herein Any amount owing hereunder to the contrary, any such amounts payable Escrow Agent may be charged to and paid from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollEscrowed Funds.
Appears in 1 contract
Sources: Shareholder Agreement (Aetrium Inc)
Escrow. (ia) Notwithstanding At the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Closing Parent shall retain from deposit two letters of credit (each a “Letter of Credit”) issued by a bank or other reputable financial institution, each of which Letters of Credit may be drawn upon in the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) 10,000,000 as described below (the “Indemnification Escrow Amount”), (ii) an $20,000,000 total amount to be drawn upon under the Letters of cash equal Credit being referred to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, herein as the “Escrow Amount”)) in escrow pursuant to the terms of an Escrow Agreement in the form of Exhibit E hereto, and shall deposit with such amounts at Closing into an account or accounts changes thereto as may reasonably be required by the escrow agent thereunder (the “Escrow AccountAgreement”) with U.S. Bankamong Parent, N.A. Company, the Shareholder Representative and a bank or other financial institution reasonably satisfactory to Parent, Company and the Shareholder Representative, as escrow agent thereunder (in such capacity, the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(iib) An amount equal to Five Million Dollars ($5,000,000) (If any shareholders of Company exercise, perfect and/or reserve their appraisal or dissenters rights pursuant to, and in accordance with, the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses TBCA and if such shareholders of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation Company do not withdraw such shareholders’ demand for appraisal prior to Closing (“Documentation Matters”); providedthe expiration of the period of time during which such shareholders of Company are permitted to effect such withdrawal under the TBCA, howeverthen, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from immediately after the Indemnification Escrow Amount in respect first anniversary of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance Escrow Agent shall deliver to Parent the amount by which the Escrow Amount exceeds the Escrow Funds.
(c) For purposes of this Agreement, the Indemnification term “Escrow Funds” shall mean an amount equal to the product obtained by multiplying the Escrow Amount, without interest, by a fraction, the numerator of which shall be equal to the Total Company Shares less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the CompanyDissenting Shares, and the Company denominator of which shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit be equal to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollTotal Company Shares.
Appears in 1 contract
Escrow. (i) Notwithstanding the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) 75,000,000 (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively together with all accrued interest thereon and any proceeds thereof less the Indemnification fees and expenses of the Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amountand Payments Agent in its capacity as escrow agent, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow AccountFund”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to deposited by Parent at the Parties according Closing, by wire transfer of immediately available funds, into escrow pursuant to the terms and conditions of an escrow agreement dated as of the Closing Date by applicable Escrow and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Payments Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) The Escrow Fund shall be held for the period commencing on the Closing Date and ending on February 28, 2022 (the “Documentation Escrow AmountPeriod”) (subject to extension under the applicable Escrow and Payments Agreement for pending claims) and used exclusively for the purpose of satisfying indemnification claims pursuant to ARTICLE XII, the obligations set forth in Section 3.07, and the amount of any Company Transaction Expenses that are not reflected in the Estimated Statement or otherwise paid at the Closing, and shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made held and released pursuant to Article IXthe terms of the applicable Escrow and Payments Agreement, Section 3.07 and ARTICLE XII.
(iii) Eighteen Within three (183) months following Business Days after the Closing Datedate on which the payment contemplated by Section 3.07(f) is required to be made, Parent and the then-Stockholders’ Representative shall issue joint written instructions to the Escrow and Payments Agent to distribute to the Key Stockholders in accordance with the terms of this Agreement an amount equal to the excess of the then remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow AgreementFund over $50,000,000.
(iv) Thirty-six Within three (363) months following Business Days after the first anniversary of the Closing Date, Parent and the then-Stockholders’ Representative shall issue joint written instructions to the Escrow and Payments Agent to distribute to the Key Stockholders in accordance with the terms of this Agreement an amount equal to the excess of the then remaining balance of the Documentation Escrow Amount shall be released to Fund over $25,000,000 plus the Stockholder Representative (or its designee) for the benefit amount of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Pending Indemnity Escrow AgreementClaims.
(v) Upon Within three (3) Business Days after the earlier completion of the Escrow Period, Parent and the Stockholders’ Representative shall issue joint written instructions to the Escrow and Payments Agent to distribute to the Key Stockholders in accordance with the terms of this Agreement an amount equal to (A) five (5) years following the Closing Date or then remaining balance of the Escrow Fund less (B) the final resolution and settlement amount of all matters and Actions related Losses for which Parent has delivered a Claim Notice for indemnification to be satisfied from the Escrow Fund in accordance with Section 12.02(b) prior to the Identified Mattersend of the Escrow Period, and which claims have not been finally determined pursuant to the then-terms of this Agreement and the applicable Escrow and Payments Agreement as of such date (“Pending Indemnity Escrow Claims”). Promptly following the final determination of each Pending Indemnity Escrow Claim, until there is no remaining balance of the Identified Matters Escrow Amount Fund, Parent and the Stockholders’ Representative shall be released issue joint written instructions to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders Escrow and Non-Owner Participants, subject Payments Agent to distribute to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released Key Stockholders in accordance with Section 7.16, subject the terms of this Agreement an amount equal to the terms and conditions as set forth in excess (if any) of (x) the amount of Losses for which Parent had delivered the applicable Claim Notice for indemnification to be satisfied from the Escrow Agreement.
(viii) When paid Fund in accordance with Section 2.6(c)(iv), ARTICLE XII and (y) the amount (if any) finally awarded to Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein with respect to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollunderlying claim.
Appears in 1 contract
Escrow. (a) Escrow Agent will hold the ▇▇▇▇▇▇▇ Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) Notwithstanding the provisions Closing, or (ii) the termination of Section 2.6(a), as security for certain this Agreement in accordance with any right hereunder. In the event Purchaser provides a Notice to Proceed to Seller prior to the expiration of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable Evaluation Period pursuant to Section 2.6(a), (i5.3(c) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amountherein, the Adjustment Escrow Amount and▇▇▇▇▇▇▇ Money Deposit shall, if applicable except as otherwise provided in this Agreement, be non-refundable to Purchaser and shall be credited against the Purchase Price at the Closing. All interest earned on the ▇▇▇▇▇▇▇ Money Deposit shall become part of the ▇▇▇▇▇▇▇ Money Deposit and shall paid to the party entitled to the ▇▇▇▇▇▇▇ Money Deposit pursuant to the terms of this Agreement. In the event this Agreement is terminated prior to the expiration of the Evaluation Period pursuant to Section 7.165.3(c) herein, then the ▇▇▇▇▇▇▇ Money Deposit will be returned by the Escrow Agent to Purchaser within one (1) Business Day following any such termination. In the event this Agreement is terminated for any other reason, then the ▇▇▇▇▇▇▇ Money Deposit will be disbursed by the Escrow Agent to the party entitled thereto pursuant to the applicable terms and provisions of this Agreement. In the event the Closing occurs, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall ▇▇▇▇▇▇▇ Money Deposit will be released to Seller, and Purchaser shall receive a credit against the Parties according to Purchase Price in the terms and conditions of an escrow agreement dated as amount of the Closing Date ▇▇▇▇▇▇▇ Money Deposit. Escrow Agent shall not release the ▇▇▇▇▇▇▇ Money Deposit to either party until Escrow Agent has been requested in writing by Seller or Purchaser to release the ▇▇▇▇▇▇▇ Money Deposit and among has given the Escrow Agentother party written notice of such request and five (5) Business Days thereafter to dispute, Parent and or consent to, the Stockholder Representative on behalf release of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”)▇▇▇▇▇▇▇ Money Deposit; provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from if this Agreement is terminated prior to the Indemnification Escrow Amount in respect expiration of indemnification claims made the Evaluation Period pursuant to Article IXSection 5.3(c), then Escrow Agent is authorized to, and shall, deliver the ▇▇▇▇▇▇▇ Money Deposit to Purchaser within one (1) Business Day following any such termination, and neither Seller nor Purchaser shall have any right to object to such delivery to Purchaser or disbursement to Seller. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is ▇▇-▇▇▇▇▇▇▇. Seller represents that it is a disregarded entity as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii) (“Disregarded Entity”). ▇▇▇▇-▇▇▇▇ Realty, L.P. (“Owner”) is the direct owner of Seller and is not a Disregarded Entity. Seller represents that Owner’s tax identification number, for purposes of reporting the interest earnings, is ▇▇-▇▇▇▇▇▇▇.
(iiib) Eighteen Escrow Agent shall not be liable to any party for any act or omission, except for Escrow Agent’s bad faith, gross negligence, willful misconduct or beach of this Agreement, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith, except to the extent arising from Escrow Agent’s bad faith, gross negligence, willful misconduct or breach of this Agreement. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the ▇▇▇▇▇▇▇ Money Deposit, Escrow Agent shall not release and deliver the ▇▇▇▇▇▇▇ Money Deposit to either party but may either (18i) months following continue to hold the Closing Date▇▇▇▇▇▇▇ Money Deposit until otherwise directed in a writing signed by all parties hereto or (ii) deposit the ▇▇▇▇▇▇▇ Money Deposit with the clerk of any court of competent jurisdiction if such dispute is not resolved within ninety (90) days of notice thereof. Upon such deposit, Escrow Agent will be released from all further duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the reasonable advice of such counsel.
(c) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the ▇▇▇▇▇▇▇ Money Deposit, the then-remaining balance Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller and unless Escrow Agent is indemnified to its satisfaction against the Indemnification cost and expense of such defense. Escrow Amount, less Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the Documentation genuineness or validity of any document or other item deposited with it or the collectability of any check delivered in connection with this Agreement. Escrow Amount, Agent shall be released fully protected in acting in good faith in accordance with any written instructions given to it hereunder and believed by it in good faith to have been signed by the Stockholder Representative proper parties.
(or its designeed) for the benefit of the Executing Stockholders, the Executing Option Holders Escrow Agent acknowledges and Non-Owner Participants, subject agrees to the terms and conditions as set forth in the Escrow provisions of Article IV of this Agreement.
(ive) Thirty-six (36) months following The provisions of this Article XVII shall survive Closing or the Closing Date, the then-remaining balance earlier termination of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow this Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P)
Escrow. If fewer than 100% of the Turbines have been Placed in Service as of the Final Capital Contribution Date:
(i) Notwithstanding The Adjusted Base Case Model run in connection with the provisions Final Capital Contribution Date shall reflect (A) the actual number of Section 2.6(a), Turbines that have been Placed in Service as security for certain of the indemnification obligations Final Capital Contribution Date and (B) the actual number of Turbines that have not been Placed in Service but which (x) the Class B Equity Investor reasonably expects to be Placed in Service by no later than the Outside Date and (y) the Independent Engineer has certified are reasonably expected to (I) satisfy the clauses (a) through (e) of the Executing Stockholdersdefinition of Placed in Service and (II) achieve “Taking Over” (as defined in the TSA) in each case, prior to the Executing Option Holders and Non-Owner Participants set forth Outside Date (such Turbines referred to in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(asubclause (B), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow AgreementAdditional Turbines”).
(ii) An amount equal to Five Million Dollars ($5,000,000) A portion of the Final Class A Capital Contribution, calculated as the Additional Turbine Escrow Factor multiplied by the number of Additional Turbines, will be paid directly into an escrow account (the “Documentation Additional Turbine Escrow AmountAccount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in governed by the Escrow Agreement.
(iviii) Thirty-six (36) months following For the Closing avoidance of doubt, and without limiting any other provision of this Agreement to the contrary, the Class B Equity Investor and its Affiliates shall use commercially reasonable efforts to cause such Additional Turbines to be Placed in Service by no later than the Outside Date. If the Class B Equity Investor fails to cause any of the Additional Turbines to be Placed in Service by the Outside Date, the then-remaining balance Class B Equity Investor shall deliver an Additional Turbine Release Certificate to each of the Documentation Class A Equity Investors and the Escrow Amount Agent and the portion of the Final Class A Capital Contribution placed into the Additional Turbine Escrow Account established pursuant to the Escrow Agreement with respect to such Additional Turbines shall be released immediately returned to the Stockholder Representative Class A Equity Investors, together with interest at a rate per annum (or its designeebased on a 360-day year of twelve 30-day months) equal to the Target IRR for the benefit period commencing on the Final Capital Contribution Date and ending on the date such funds are returned to each Class A Equity Investor (it being understood that (x) interest shall not accrue on any portion of the Executing StockholdersFinal Class A Capital Contribution placed into the Additional Turbine Escrow Account with respect to incomplete Additional Turbines to the extent such incomplete Additional Turbines become Completed Additional Turbines in accordance with clause (iv) below and (y) any portion of the Final Class A Capital Contribution placed into the Additional Turbine Escrow Account that is returned to any Class A Equity Investor pursuant to this Section 2.2(c)(iii), together with interest as calculated in accordance with this Section 2.2(c)(iii), shall be reflected in the “Target IRR Report” (as defined in the LLC Agreement)), and the Class B Equity Investor shall have no liability to any Class A Equity Investor for any loss of ITC or other tax benefits expected from such Turbines.
(iv) If the Class B Equity Investor causes any of such Additional Turbines to become a Completed Additional Turbine, the Executing Option Holders and Non-Owner ParticipantsClass B Equity Investor shall deliver to the Class A Equity Investors a duly completed Additional Turbine Placed in Service Certificate with respect to such Completed Additional Turbine(s), which shall, in connection with the Type Certificate, include the Independent Engineer’s verification of each Major Component for each applicable Completed Additional Turbine, and, promptly following delivery of such Additional Turbine Placed in Service Certificate, the Class A Equity Investors shall instruct the Escrow Agent in writing to release the portion of the Final Class A Capital Contribution placed into the Additional Turbine Escrow Account that is allocable to such Completed Additional Turbine to be distributed to the Class B Equity Investor. Notwithstanding the foregoing, to the extent that any of the Major Components used for any of the applicable Completed Additional Turbines were not set forth on the Type Certificate, subject to all other conditions being satisfied or waived, the terms aforementioned release and conditions as set forth in distribution of funds from the Additional Turbine Escrow AgreementAccount for the Completed Additional Turbines shall occur and Section 6.1(c)(i) of the LLC Agreement shall apply.
(v) Upon If the Class B Equity Investor causes any of the Additional Turbines to become a Completed Additional Turbine then, no later than the earlier of (A1) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from Additional Turbine Placed in Service Certificate with respect to the Escrow Account or Stockholder Representative Reservefinal Completed Additional Turbine to be Placed in Service and (2) the Outside Date, as applicable) through the Company’s payrollClass B Equity Investor shall deliver to the Class A Equity Investors a Completed Additional Turbine Cost Segregation Report.
Appears in 1 contract
Sources: Equity Capital Contribution Agreement (Avangrid, Inc.)
Escrow. (i) Notwithstanding Prior to the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholdersclosing date, the Executing Option Holders Shareholder shall deliver to an escrow agent, to be agreed upon by the parties, hereinafter called escrow agent 1,000,000 shares of Master Financial duly indorsed. Said shares representing all the issued and Non-Owner Participants set forth outstanding shares of Master Financial. Tensleep shall deliver to the escrow agent 700,000 shares of its common stock as described in Section One of this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”)agreement. The Escrow Amount escrow shall be released subject to the Parties according to the following terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).conditions:
(iia) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following On the Closing Date, the then-remaining balance escrow agent shall deliver the shares of Tensleep and Master Financial's common stock as set forth and provided in Section One and Two of this agreement.
(b) All fees and expenses of the Indemnification Escrow Amount, less the Documentation Escrow Amount, escrow agent shall be released borne equally by the parties.
(c) Additional shares received by the Shareholder with respect to shares held in escrow, as a result of stock dividends and stock splits shall be delivered to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders escrow agent and Non-Owner Participants, shall be subject to the terms and conditions of this agreement.
(d) The escrow agent shall hold the undistributed shares deposited hereunder until May 1, 2001, whereupon he shall release to the Shareholder the balance of shares remaining in escrow after adjustment as set forth in Section Two of this agreement and payment to Tensleep of all of its indemnity claims, approved as hereinafter provided, except that in the Escrow Agreementevent a claim that may result in indemnification hereunder remains undetermined as of April 30, 2001, as adequate number of shares shall be retained in escrow to provide for payment of such claim.
(ive) Thirty-six (36) months following In the Closing Dateevent of any claim by Tensleep for indemnification hereunder, Tensleep shall give written notice to the Shareholder thereof, and the parties shall attempt to reach agreement in respect thereto. If the parties fail to reach agreement within ten days after notice of a claim has been given, the then-remaining balance issue shall be submitted to arbitration in accordance with the rules and requirements of the Documentation Escrow Amount American Arbitration Association then obtaining. The decision of the arbitrator shall be released final and binding on all parties, and appropriate instructions in conformity therewith shall immediately be given by the arbitrator to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholdersescrow agent, the Executing Option Holders who is authorized and Non-Owner Participants, subject directed to the terms and conditions as set forth in the Escrow Agreementrely on such instructions.
(vf) Upon The Shareholder shall have the earlier right, at his own expense, to be represented by counsel of (A) five (5) years following his own choice in connection with the Closing Date or (B) defense of any claim which may be brought against Master Financial in respect to which Tensleep may be entitled to indemnification under this agreement. In the final resolution and settlement event of all matters and Actions related any such claim, Tensleep shall give prompt written notice thereof to the Identified MattersShareholder. If, after having received such notice, the then-remaining balance Shareholder elects not to participate in the defense of the Identified Matters Escrow Amount such claim, they shall be released to bound by the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth result obtained by Tensleep in the Escrow Agreementdefense thereof.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Stock Purchase Agreement (Tensleep Technologies Inc)
Escrow. (ia) Notwithstanding At the provisions Closing, the Indemnity Escrow Amount shall be placed in an escrow account (“Indemnity Escrow Account ”) (a) to be held by the Escrow Agent in accordance with the terms of Section 2.6(a), as security for certain this Agreement and the terms of the indemnification obligations Escrow Agreement, and (b) shall be held and disbursed solely for the purposes and in accordance with the terms of this Agreement and the Executing StockholdersEscrow Agreement. The Indemnity Escrow Amount, excluding all income and gains generated in respect thereof and less any distributions made therefrom, all in accordance with the Executing Option Holders terms and Non-Owner Participants conditions set forth in this Agreement and the other Transaction DocumentsEscrow Agreement, Parent shall retain be referred to herein collectively as the “Escrow Funds ”. Other than the Indemnity Escrow Amount deposited by Purchaser with the Escrow Agent at Closing, neither Sellers nor Seller Affiliate shall have any obligation to pay any amounts into, or increase, the Escrow Funds. If Purchaser becomes entitled to a payment under Article XII and any Escrow Funds remain in the Indemnity Escrow Account, Purchaser and Sellers’ Representative shall deliver executed, written instructions to the Escrow Agent to release an amount from the Merger Consideration otherwise deliverable pursuant Escrow Funds to Section 2.6(a)Purchaser equal to the lesser of the payment amount and the total Escrow Funds.
(b) On the first business day after the first anniversary of the Closing Date, Sellers’ Representative and Purchaser shall deliver joint written instructions to the Escrow Agent to direct the Escrow Agent to release and distribute to Sellers, as directed by Sellers’ Representative, an amount equal to the aggregate of (if a positive number): (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (one-half the “Indemnification Indemnity Escrow Amount”), less, (ii) an the aggregate amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (funds previously distributed from the “Adjustment Escrow Amount”)Funds for an indemnification claim under this Article XII, and less, (iii) an the aggregate amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, Claims for indemnification by Purchaser under Article XII that are pending and collectively unresolved at such time and for which notice has been provided in accordance with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner ParticipantsXII, subject to the terms and conditions as limitations set forth in Article XII. On the first business day after the expiration of the 18 Month Period, Sellers and Purchaser shall deliver joint written instructions to the Escrow Agent to direct the Escrow Agent to release and distribute to Sellers, as directed by Sellers’ Representative, an amount equal to the Escrow Funds remaining in the Indemnity Escrow Account less the aggregate amount of Claims for indemnification by Purchaser under Article XII that are pending and unresolved at such time and for which notice has been provided in accordance with Article XII, subject to the limitations set forth in Article XII. Thereafter, if at any time the amount of the Escrow Funds exceed the amount of any pending Claims, such excess funds shall be released from the Indemnity Escrow Account to Sellers, and the Purchaser and Sellers shall promptly and jointly instruct the Escrow Agent in writing to do the same. Purchaser, on one hand, and Sellers, on the other hand, will share equally the payment of any fees and expenses payable to the Escrow Agent pursuant to the Escrow Agreement.
(ivc) Thirty-six (36) months following Except in the Closing Dateevent of Fraud, the then-remaining balance any obligations of the Documentation Escrow Amount Seller pursuant to Article XII shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable satisfied first from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollFunds.
Appears in 1 contract
Sources: Asset Purchase Agreement (Asbury Automotive Group Inc)
Escrow. (i) Notwithstanding 5.3.1 The Escrow Fund shall be the provisions exclusive source of Section 2.6(a), as security for certain recovery in respect of the each of VSI's and Seller's indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a)4 hereof or otherwise arising under this Agreement (including the Schedules hereto) or any other agreement between Buyer and VSI or Seller entered into in connection herewith, (i) an amount including any claim based upon each of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification VSI's and Seller's warranties, representations and covenants contained herein including those contained in Section 5.1 hereof. The Escrow Amount”)Fund shall be held and distributed, (ii) an amount of cash equal to with interest, by Bank One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. BankTexas, N.A. (the “"Escrow Agent”"). The , pursuant to an Escrow Amount Agreement in the form set forth as Exhibit "C" hereto (the "Escrow Agreement"), which shall be released executed and delivered by VSI, Seller and Buyer at the Closing.
5.3.2 Buyer shall be entitled to receive from the Escrow Fund a payment equal to the Parties according amount, if any, provided for in Section 5.1 hereof without regard to the terms Floor Amount.
5.3.3 Subject to Sections 4.5.2 and conditions of an escrow agreement dated as of the Closing Date by 5.3.6 hereof, Seller and among VSI shall be entitled to receive from the Escrow Agent, Parent and Fund the Stockholder Representative on behalf costs of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith Environmental Remediation at all Facilities not excluded by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated Buyer from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made Assets pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders Section 5.5.2 hereof and Non-Owner Participants, subject to in accordance with the terms and conditions as set forth in of the Escrow Agreement.
5.3.4 In the event that any Buyer Indemnitee has any claim for damages based upon VSI's and Seller's warranties, representations and covenants contained herein or otherwise arising hereunder or any other agreement between Buyer and VSI or Seller entered into in connection herewith (iv) Thirty-six other than VSI's and Seller's obligations under Section 5.1 hereof), Buyer shall give written notice of same to VSI and Seller and shall forward a copy of such notice to the Escrow Agent. If VSI or Seller has not corrected or remedied such failure of performance, representation, warranty or covenant within 30 days following receipt of such notice, then VSI and Seller acknowledge, subject to the provisions of Section 5.15 hereof, that Buyer shall be entitled to receive from the Escrow Fund, in accordance with the terms of the Escrow Agreement, the amount of indemnification that Buyer is due pursuant to this Agreement.
5.3.5 Provided no dispute or disputes in excess of an aggregate of $3,000,000 (36) months following or $2,000,000, if that part of the Escrow Fund subject to Section 5.3.6 hereof has been released to VSI or Seller), less the amount of any payments theretofore made in satisfaction of Seller's or VSI's indemnification and guaranty obligations hereunder, exist as to any Claim or Claims by any Buyer Indemnitee against all or a portion of the Escrow Fund on the first anniversary of the Closing Date, then $1,000,000, less the then-remaining balance amount of the Documentation Escrow Amount shall any payments in satisfaction of VSI's or Seller's indemnification and guaranty obligations hereunder, will be released to Seller or VSI on the Stockholder Representative first business day following such first anniversary of the Closing Date. To the extent such a dispute or disputes do exist as to a Claim or Claims on the first anniversary of the Closing Date, an amount equal to the amount of such Claim or Claims will be withheld from such partial release of the Escrow Fund and will continue to be held in accordance with the provisions of the Escrow Agreement until such Claim or Claims have been fully resolved. Provided no dispute or disputes in excess of an aggregate of $2,000,000 (or its designee) for the benefit $1,000,000, if that part of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, Escrow Fund subject to Section 5.3.6 hereof has been released to VSI or Seller), less the terms amount of any payments theretofore made in satisfaction of Seller's or VSI's indemnification and conditions guaranty obligations hereunder, exist as set forth to any Claim or Claims by any Buyer Indemnitee against all or a portion of the Escrow Fund on the second anniversary of the Closing Date, then an additional $1,000,000, less the amount of any payments theretofore made in satisfaction of VSI's or Seller's indemnification and guaranty obligations hereunder, will be released to Seller or VSI on the first business day following such second anniversary of the Closing Date. To the extent such a dispute or disputes do exist as to a Claim or Claims on the second anniversary of the Closing Date, an amount equal to the amount of such Claim or Claims will be withheld from such partial release of the Escrow Fund and will continue to be held in accordance with the provisions of the Escrow Agreement until such Claim or Claims have been fully resolved. Provided no dispute or disputes exist as to any Claim or Claims by any Buyer Indemnitee against all or a portion of the Escrow Fund on the third anniversary of the Closing Date, then the remainder of the Escrow Fund will be released to Seller or VSI on the first business day following such third anniversary of the Closing Date and the Escrow Agreement shall thereupon terminate. To the extent a dispute or disputes do exist as to a Claim or Claims on the third anniversary of the Closing Date, an amount equal to the amount of such Claim or Claims will be withheld from such release of the Escrow Fund and will continue to be held in accordance with the provisions of the Escrow Agreement until such Claim or Claims have been fully resolved. Seller's and VSI's obligations hereunder shall not be affected by any termination of the Escrow Agreement.
5.3.6 On or before the first anniversary of the Closing Date, VSI shall certify in writing to Buyer that VSI or Seller or both have completed the Environmental Remediation of the Environmental Contamination identified by the Environmental Due Diligence Review as required by the terms of Section 4.5 hereof as to all Facilities not excluded by Buyer pursuant to Section 5.5.2 hereof as well as any Environmental Contamination identified during the Environmental Remediation (v) or, in the event that such Environmental Remediation is not completed at the first anniversary of the Closing Date, VSI shall deliver a certificate of the environmental engineering and consulting firm which is effecting such Environmental Remediation estimating the additional time required for such completion and the additional cost thereof ("Estimated Additional Remediation Cost"). Upon delivery to Buyer of VSI's certificate or the earlier certificate of such firm, as the case may be, an amount equal to $1,000,000, less the sum of (A) five (5) years following the Closing Date or (Bi) the final resolution aggregate cost of such Environmental Remediation (including the Estimated Additional Remediation Cost) and settlement (ii) the aggregate amount of other Losses of all matters and Actions related other Buyer Indemnitees subject to the Identified Mattersindemnification pursuant to Section 4.1 hereof in excess of $3,000,000, the then-remaining balance of the Identified Matters Escrow Amount shall forthwith be released to the Stockholder Representative (or its designee) for the benefit VSI and Seller out of the Executing StockholdersEscrow Fund. In the event that such Environmental Remediation was not completed at the first anniversary of the Closing Date, Executing Option Holders VSI shall deliver to Buyer a certificate of completion thereof upon such completion containing a statement of the aggregate cost of the Environmental Remediation effected following such first anniversary, and Non-Owner Participants, subject Buyer shall immediately release to the terms and conditions as set forth in Seller or VSI out of the Escrow Agreement.
(vi) On Fund the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be which would have been released to the Stockholder Representative (Seller or its designee) for the benefit of the Executing StockholdersVSI under this Section 5.3.6 following such first anniversary had such actual cost, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later rather than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative ReserveEstimated Additional Remediation Cost, as applicable) through the Company’s payrollbeen used in such calculation.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hydrochem International Inc)
Escrow. (a) Prior to or concurrently with the Effective Time: (i) Notwithstanding Parent and S&T shall enter into an escrow agreement, in the provisions of Section 2.6(aform attached hereto as EXHIBIT A (the "Escrow Agreement"), with such escrow agent as security for certain may be designated by Parent (the "Escrow Agent") and G. Ogde▇ ▇▇▇▇▇▇▇ ▇▇▇ Wilb▇▇ ▇. ▇▇▇▇▇, ▇▇., ▇▇ representatives of the indemnification obligations holders of S&T Common Shares (the Executing Stockholders, the Executing Option Holders "Representatives"); and Non-Owner Participants set forth in this Agreement and the other Transaction Documents(ii) subject to Section 7.4(c)(iv), Parent shall retain from deposit with the Merger Consideration otherwise deliverable Escrow Agent, pursuant to Section 2.6(a)the Escrow Agreement, (i) an amount of cash equal to Fifteen Three Million Dollars ($15,000,0003,000,000) in immediately available funds (the “Indemnification "Escrow Amount”Funds"). Upon being deposited with the Escrow Agent pursuant to the Escrow Agreement, the Escrow Funds and any and all earnings thereon and proceeds thereof held by the Escrow Agent (iicollectively, the "Escrowed Property") an shall be subject in all respects to the provisions of the Escrow Agreement and shall be held and disbursed by the Escrow Agent in accordance with the provisions of the Escrow Agreement. In accordance with the provisions of the Escrow Agreement, the Escrowed Property shall be held in escrow by the Escrow Agent for a period of eighteen (18) months after which time any remaining Escrowed Property will be disbursed, on a pro rata basis, to the Certificate holders of S&T Common Shares; PROVIDED, HOWEVER, that such portion of the Escrowed Property sufficient to completely discharge the amount of cash equal any claim for indemnification made by written demand before the expiration of such 18-month period (as provided in Section 1.11(b) and the Escrow Agreement) shall be held in escrow by the Escrow Agent beyond the 18-month period until such claim has been fully resolved. On the Closing Date, to provide a fund to reimburse all out-of-pocket expenses incurred by the Representatives in connection with their service as Representatives, Parent shall pay to the Representative the sum of One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”100,000), and (iii) an which amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released deducted from the aggregate Merger Consideration otherwise to be deposited into the Exchange Fund and any unused portions of such amount shall be distributed by the Representative to the Parties according holders of S&T Common Shares in proportion to the terms and conditions of an escrow agreement dated their Proportionate Share (as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth defined in the Escrow Agreement.
(iv) Thirty-six (36) months following at the Closing Date, the then-remaining balance termination of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Elder Beerman Stores Corp)
Escrow. Upon execution of this Agreement, Pledgor shall deposit with Escrow Agent the Pledged Shares, along with the aforesaid Assignment (all of which items shall hereinafter be referred to as the "Pledged Documents") to be held in escrow for future delivery as follows:
a. Escrow Agent shall deliver the Pledged Documents to Pledgee within ten (10) days after receiving an affidavit signed by Pledgee stating that:
(i) Notwithstanding Pledgor is in default under the provisions Note and all periods of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant time within which to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), cure such default have expired;
(ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (Pledgee is accelerating the “Adjustment Escrow Amount”), and entire unpaid balance due under the Note; and
(iii) Pledgee demands delivery of the Pledged Documents. Pledgee shall simultaneously furnish Pledgor with a copy of said affidavit. Upon such delivery of the Pledged Documents, Escrow Agent's duties hereunder shall terminate.
b. In the event Escrow Agent has not delivered the Pledged Documents pursuant to subparagraph a above, then Escrow Agent shall deliver the Pledged Documents to Pledgor within ten (10) days after receipt of the original of the Note marked "paid in full," accompanied by instructions from Pledgor indicating that said Note has been paid in full and the Pledged Documents shall be delivered to Pledgor at the address specified therein. Upon such delivery of the Pledged Documents, Escrow Agent's duties hereunder shall terminate. Pledgee agrees to deliver the Note to Pledgor marked "paid in full," immediately upon satisfaction thereof.
c. Upon execution of this Agreement, Pledgor shall deliver to the Escrow Agent Stock Certificate Number 030121, representing Ten Million Six Hundred Sixty Six Thousand Six Hundred Ten (10,666,610) shares of common stock of Centrack International, Inc. Pledgor shall further execute an amount endorsement/assignment of cash equal said Certificate appointing the Escrow Agent as Attorney to effectuate division and reissuance of same as follows:
1. One Million Dollars ($1,000,000) (shares to Pledgor, same to be held in escrow by the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable Agent pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated this Agreement.
2. Thirty Thousand (30,000) shares to the Pledgee as of consideration for the Closing Date by and among loan being extended pursuant to the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed Promissory Note attached hereto.
3. Nine Million Six Hundred Sixteen Thousand Six Hundred Ten (9,636,610) shares which shall be forwarded to Pledgor upon in good faith receipt by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein Nothing hereinabove withstanding to the contrary, any until such amounts payable time as the above division of the stock is accomplished, the total number of shares shall constitute collateral for payment of the obligations pursuant to this Agreement. Pledgor and Pledgee hereby acknowledge that the Escrow Agent is making no representations as to right or legality pertaining to the above division of the stock or its sale in the event of the default, and Pledgor and Pledgee each agree that Escrow Agent shall have no liability resulting from the Escrow Account and any amounts payable from inability to accomplish the Stockholder Representative Reserve to or for the benefit terms of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid this Pledge Agreement due to the Companyinability to divide, transfer or sell the stock. Pledgor and the Company shall pay the applicable recipient the amount Pledgee each agree to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) indemnify and hold Escrow Agent harmless in this regard and as soon as practicable (but otherwise provided for in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollthis Agreement.
Appears in 1 contract
Sources: Pledge and Escrow Agreement (Centrack International Inc)
Escrow. From and after the date hereof, the Parties (iwith the Company acting on behalf of the shareholders of the Company until Shareholder Representative shall have been duly constituted and appointed by all of such shareholders) Notwithstanding shall cooperate in good faith to, and, on or prior to the provisions Effective Time, shall negotiate and draft an Escrow Agreement pursuant to which:
(a) for the purpose of Section 2.6(a), as security for certain of securing the indemnification obligations of the Executing Stockholders, shareholders of the Executing Option Holders and Non-Owner Participants Company set forth in this Agreement Article VIII and the other Transaction DocumentsIndemnification Agreements, at the Closing, Parent shall retain from will deposit in escrow with the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), Escrow Agent (i) an amount certificates representing 15% of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), Stock Consideration and (ii) an amount cash representing 15% of cash equal the Cash Consideration (such portions of the Stock Consideration and Cash Consideration, plus any interest thereon or other accretions thereto, being collectively referred to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, as the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow AccountFund”) in lieu of transferring such portion of the Stock Consideration and paying such portion of the Cash Consideration to holders of Certificates in accordance with U.S. Bank, N.A. Section 2.02;
(b) distributions from the “Escrow Agent”). The Fund will be made in accordance with Section 8.06;
(c) 100% of the Escrow Amount Fund shall be released held by the Escrow Agent (less any distributions to Parent in connection with indemnification of any Parent Indemnified Parties) until the Parties according to later of (i) the terms and conditions of an escrow agreement dated as six-month anniversary of the Closing Date by and among (ii) the date on which Parent completes an audit of the Surviving Corporation for the period ending December 31, 2006 (such later date, the “Initial Release Date”);
(d) on the Initial Release Date (or the next succeeding business day if such date is not a business day) the Escrow Agent, Parent and Agent shall release to the Stockholder Representative on behalf former holders of Certificates certificates representing 50% of the Executing Stockholdersinitial Stock Consideration deposited with the Escrow Agent (less any prior distributions to Parent in connection with indemnification of any Parent Indemnified Parties and less a portion subject to then-existing claims for indemnification by any Parent Indemnified Parties) and (ii) cash representing 50% of the initial Cash Consideration deposited with the Escrow Agent (less any prior distributions to Parent in connection with indemnification of any Parent Indemnified Parties and less a portion subject to then-existing claims for indemnification by any Parent Indemnified Parties);
(e) from and after the Initial Release Date (or the next succeeding business day if such date is not a business day), all property and amounts remaining in the Executing Option Holders and Non-Owner Participants, Escrow Fund after the release described in a reasonable form mutually agreed upon in good faith the preceding clause (d) shall be held by the Escrow Agent, Agent (less any distributions to Parent and in connection with indemnification of any Parent Indemnified Parties) until the Stockholder Representative (12-month anniversary of the “Escrow Agreement”).Closing Date;
(iif) An amount equal on such 12-month anniversary of the Closing Date (or the next succeeding business day if such date is not a business day), the Escrow Agent shall release to Five Million Dollars the former holders of Certificates all property and amounts then remaining in the Escrow Fund ($5,000,000less a portion subject to then-existing claims for indemnification by any Parent Indemnified Parties); and
(g) (any property and amounts remaining in the “Documentation Escrow Amount”) Fund thereafter shall be allocated from the Indemnification Escrow Amount distributed to address Losses Parent in connection with indemnification of any Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be and/or released to the Stockholder Representative (or its designee) for the benefit former holders of Certificates upon final resolution of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released applicable disputes in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account resolution and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollSection 8.06.
Appears in 1 contract
Sources: Merger Agreement (Ddi Corp)
Escrow. At the Effective Time, Parent shall withhold the Escrow Cash from the Closing Cash Consideration payable, in accordance with the Merger Consideration Certificate, to the Incentive Plan Representative (i) Notwithstanding on behalf of the provisions of Section 2.6(aIncentive Plan Participants), the Company Stockholder and ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. (“▇▇▇▇▇ ▇▇▇▇▇▇▇”). For the purposes of this Section 2.03, the Incentive Plan Representative and the Company Stockholder are together referred to as the “Escrow Participants.” Simultaneously with the execution and delivery of this Agreement, Parent, the Incentive Plan Representative (on behalf of the Incentive Plan Participants) and the Escrow Agent shall enter into an escrow agreement (the “Escrow Agreement”) which will provide the terms and conditions for the release of the Escrow Cash, along with any other amounts deposited with the Escrow Agent as security for certain of the indemnification obligations of Article VIII pursuant to the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in terms of this Agreement and the other Transaction Documents(such amounts, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively together with the Indemnification Escrow AmountCash, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, comprising the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (after the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as second anniversary of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms of this Agreement and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following . On the Closing Date, Parent shall cause the then-remaining balance of Escrow Cash to be deposited with the Documentation Escrow Agent. The Escrow Agent shall hold the Escrow Amount shall be released to the Stockholder Representative (or its designee) as security for the benefit of the Executing Stockholders, the Executing Option Holders indemnification rights under Article VIII and Non-Owner Participants, subject pursuant to the terms of that certain letter agreement dated as of October 30, 2009 between ▇▇▇▇▇ ▇▇▇▇▇▇▇ and conditions as set forth in NetStreams, L.L.C. (the “▇▇▇▇▇ ▇▇▇▇▇▇▇ Agreement”), amending that certain engagement letter between ▇▇▇▇▇ ▇▇▇▇▇▇▇ and NetStreams, L.L.C. dated February 2, 2009. The parties intend that, for tax purposes, the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance Cash shall qualify for installment sale treatment under §453 of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share Code. A portion of the Escrow Account. Notwithstanding anything herein Cash will be treated as imputed interest to the contrary, any such amounts payable from extent required under the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollCode.
Appears in 1 contract
Escrow. (i) Notwithstanding anything to the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth contrary contained in this Agreement and Agreement, at the other Transaction DocumentsClosing, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively deposit with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. JPMorgan Chase Bank, N.A. (the “Escrow Agent”): (i) into an interest-bearing escrow account, an amount in cash equal to the Indemnity Escrow Amount (as may be supplemented pursuant to Exhibit E and subject to the terms of Section 10) (the “Indemnity Escrow Fund”), to secure the indemnification obligations of the Effective Time Holders under Sections 6 and 10 of this Agreement, (ii) into a separate interest-bearing escrow account, an amount in cash equal to the Working Capital Escrow Amount to secure any adjustments required in connection with a Closing Adjustments Shortfall pursuant to Section 1.9 (the “Working Capital Escrow Fund”) and (iii) into a separate non-interest-bearing escrow account, an amount in cash equal to the Securityholders’ Agent Fund, pursuant to Section 11.1(g) (together with the Indemnity Escrow Fund and the Working Capital Escrow Fund, the “Escrow Fund”). The Escrow Amount Fund shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith held by the Escrow Agent, Parent Agent and disbursed by it solely for the purposes and in accordance with the terms of this Agreement and the Stockholder Representative provisions of the escrow agreement to be entered into among Parent, the Securityholders’ Agent and the Escrow Agent on the Closing Date, substantially in the form of Exhibit C to this Agreement (the “Escrow Agreement”).
(ii) An amount equal . The terms and provisions of the Escrow Agreement and the transactions contemplated thereby are specific terms of the Merger, and the approval and adoption of this Agreement and approval of the Merger by the Effective Time Holders pursuant to Five Million Dollars ($5,000,000) (written consents evidencing the “Documentation Required Merger Shareholder Vote, Acknowledgment and Release Agreements, the Warrant Surrender Agreements and the Letters of Transmittal shall constitute approval by such Effective Time Holders, as specific terms of the Merger, and the irrevocable agreement of such Effective Time Holders to be bound by and comply with, the Escrow Amount”) shall be allocated from Agreement and all of the Indemnification arrangements and provisions of this Agreement relating thereto, including the deposit of the Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from into escrow and the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as obligations set forth in the Escrow AgreementSections 6 and 10 hereof.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Escrow. (a) The Deposit shall be held in escrow in an interest bearing account by Escrow Agent until delivered as herein provided. Any interest earned on the Deposit shall be paid to whichever party is entitled thereto. Such interest shall not be credited against the Aggregate Price. The Deposit shall be held and disbursed by Escrow Agent in the following manner:
(i) Notwithstanding to Seller at the provisions of Section 2.6(a), as security for certain Closing Date upon consummation of the indemnification closing; or
(ii) to Seller upon receipt of written demand therefor, stating that Purchaser has defaulted in the performance of Purchaser's obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in under this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), facts and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit circumstances underlying such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”)default; provided, however, that nothing contained herein Escrow Agent shall prevent not honor such demand until at least five (5) days after it has sent a Parent Indemnified Party’s recovery copy of such demand to Purchaser, nor thereafter if Escrow Agent shall have received written notice of objection from Purchaser in accordance with the Indemnification Escrow Amount in respect provisions of indemnification claims made pursuant to Article IX.clause (b) of this SECTION 1.4; or
(iii) Eighteen to Purchaser upon receipt of written demand therefor, stating that either (18x) months following this Agreement has been terminated and certifying the Closing Datebasis for such termination, or (y) Seller has defaulted in performance of Seller's obligations and the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released facts and circumstances underlying such default or that Purchaser is otherwise entitled to the Stockholder Representative (or its designee) for Deposit under the benefit provisions of the Executing Stockholdersthis Agreement; provided, the Executing Option Holders and Non-Owner Participantshowever, subject to the terms and conditions as set forth in the that Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount Agent shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) not honor such demand until at least five (5) years following days after it has sent a copy of such demand to Seller, nor thereafter if Escrow Agent shall have received written notice of objection from Seller in accordance with the Closing Date or provisions of clause (Bb) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreementthis SECTION 1.4.
(vib) On Upon receipt of written demand for the Adjustment Payment DateDeposit by Purchaser or Seller pursuant to clause (ii) or (iii) of SECTION 1.4(A), Escrow Agent shall promptly send a copy thereof to the then-remaining balance other party. The other party shall have the right to object to the delivery of the Adjustment Deposit by sending written notice of such objection to Escrow Amount Agent within five (5) days after deducting Escrow Agent sends a copy of the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released written demand to the Stockholder Representative (or its designee) objecting party but not thereafter. Such notice shall set forth the basis for objecting to the benefit delivery of the Executing StockholdersDeposit. Upon receipt of such notice, the Executing Option Holders and Non-Owner Participants, subject Escrow Agent shall promptly send a copy thereof to the terms and conditions as set forth in party who made the Escrow Agreementwritten demand.
(viic) If applicableIn the event of any dispute between the parties, Escrow Agent, at its option, may disregard all instructions received and may hold the then-remaining balance Deposit until the dispute is mutually resolved and Escrow Agent is advised of this fact in writing by both Seller and Purchaser, or Escrow Agent is otherwise instructed by a final judgment of a court of competent jurisdiction.
(d) In the event Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive conflicting instructions, claims or demands from the parties hereto, or instructions which conflict with any of the JV Buyout provisions of this Agreement, Escrow Amount Agent shall be paid entitled (but not obligated) to refrain from taking any action other than to keep safely the Deposit until Escrow Agent shall be instructed otherwise in writing signed by both Seller and Purchaser, or released by final judgment of a court of competent jurisdiction.
(e) Escrow Agent may rely upon, and shall be protected in acting or refraining from acting upon, any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties, provided that any modification of this Agreement shall be signed by Escrow Agent, Purchaser and Seller.
(f) Seller and Purchaser shall jointly and severally hold Escrow Agent harmless against any loss, damage, liability or expense incurred by Escrow Agent not caused by its willful misconduct or gross negligence, arising out of or in connection with its entering into this Agreement and the carrying out of its duties hereunder, including the costs and expenses of defending itself against any claim of liability or participating in any legal proceeding. Escrow Agent may consult with counsel of its choice, and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreementopinion of such counsel.
(viiig) When paid Escrow Agent may resign at will and be discharged from its duties or obligations hereunder by giving notice in writing of such resignation specifying a date when such resignation shall take effect; provided, however, that prior to such resignation a substitute escrow agent is approved in writing by Seller and Purchaser, which approval shall not be unreasonably withheld or delayed. After such resignation, Escrow Agent shall have no further duties or liability hereunder.
(h) Purchaser and Seller, together, shall have the right to terminate the appointment of Escrow Agent hereunder by giving to it notice of such termination, specifying the date upon which such termination shall take effect and designating a replacement escrow agent, who shall sign a counterpart of this Agreement. Upon demand of such successor escrow agent, the Deposit shall be turned over and delivered to such successor escrow agent, who shall thereupon be bound by all of the provisions hereof.
(i) Seller and Purchaser shall be jointly and severally responsible for the reimbursement to Escrow Agent of all expenses, disbursements and advances (including reasonable attorneys' fees) incurred or made by Escrow Agent in connection with the carrying out of its duties hereunder.
(j) Escrow Agent's agreements and obligations hereunder shall terminate and Escrow Agent shall be discharged from further duties and obligations hereunder upon final payment of the Deposit in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf the terms of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollthis Agreement.
Appears in 1 contract
Escrow. (a) At the Closing, (i) Notwithstanding the provisions Purchaser shall deposit an amount in cash equal to $2,718,750 (the “Indemnity Escrow Amount”) with the Escrow Agent in accordance with Section 2.7 (Transactions to Be Effected at Closing) to be held in an escrow account by the Escrow Agent for the purpose of Section 2.6(a), as security for certain of the securing indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants Seller set forth in this Agreement Article IX (the “Indemnity Escrow Account”) and (ii) the other Transaction Documents, Parent Purchaser shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) deposit an amount of in cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) 8,000,000 (the “Adjustment Escrow Amount”)” and, and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively together with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Indemnity Escrow Amount, the “Escrow AmountAmounts”), and shall deposit such amounts ) with the Escrow Agent in accordance with Section 2.7 (Transactions to Be Effected at Closing into Closing) to be held in an escrow account or accounts by the Escrow Agent for the purpose of securing payment obligations of the Seller (if any) with respect to post-closing adjustments as set forth in Section 2.8 (the “Adjustment Escrow Account”) ” and, together with U.S. Bankthe Indemnity Escrow Account, N.A. (the “Escrow AgentAccounts”). The Escrow Amount Escrowed Cash shall be released to held by the Parties according Escrow Agent pursuant to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) . The Escrowed Cash shall be allocated from the Indemnification Escrow Amount held as a trust fund and shall not be subject to address Losses any lien, attachment, trustee process or any other judicial process of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); providedany creditor of any party, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, and shall be released to the Stockholder Representative (or its designee) held and disbursed solely for the benefit of the Executing Stockholders, the Executing Option Holders purposes and Non-Owner Participants, subject to in accordance with the terms of this Agreement and conditions as set forth in the Escrow Agreement.
(ivb) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders Except as otherwise provided in this Agreement and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
, (vi) Upon on the earlier of date that is twelve (A12) five (5) years following months after the Closing Date or (B) the final resolution and settlement “Release Date”), all of all matters and Actions related the Escrowed Cash with respect to the Identified Matters, the then-remaining balance Indemnity Escrow Account (other than any amounts in respect of the Identified Matters Indemnity Escrow Amount shall Account to be released distributed to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent Purchaser pursuant to Section 2.7(b2.4(c)) shall be released to the Stockholder Representative Seller pursuant to joint written instructions delivered by the Purchaser and the Seller to the Escrow Agent and (or its designeeii) for the benefit all of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject Escrowed Cash with respect to the terms and conditions as set forth Adjustment Escrow Account (other than any amounts in the Escrow Agreement.
(vii) If applicable, the then-remaining balance respect of the JV Buyout Adjustment Escrow Amount Account to be distributed to the Purchaser pursuant to Section 2.8(j)) shall be paid or released to the Seller in accordance with Section 7.162.8(h).
(c) The parties hereto agree that, subject for Tax reporting purposes, the Seller shall be treated as the owner of the Escrowed Cash, and that all interest on or other taxable income, if any, earned from the investment of the Escrowed Cash pursuant to this Agreement shall be treated for Tax purposes as earned by the terms Seller until the Escrowed Cash is distributed in accordance with this Agreement and conditions as set forth in the Escrow Agreement.
. The parties hereto agree that any and all interest, gains and other distributions and income earned on the Escrow Accounts shall be solely for the account of the Seller (viii) When paid and all such amounts shall be distributed to the Seller from the Escrow Accounts in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollAgreement).
Appears in 1 contract
Escrow. (ia) Notwithstanding One day following the provisions execution and delivery of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documentsby an Investor, Parent such Investor shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), promptly cause a wire transfer of immediately available funds (iU.S. dollars) in an amount representing such Investor’s Subscription Amount to be paid to a non-interest bearing escrow account of cash equal to Fifteen Million Dollars Escrow, LLC ($15,000,000the “Escrow Agent”) (the “Indemnification aggregate amounts received being held in escrow by the Escrow Amount”), (ii) an amount of cash equal Agent are referred to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, herein as the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 3.3(b) below.
(b) The Escrow Agent shall be released continue to hold the Parties according Escrow Amount in escrow in accordance with and subject to this Agreement, from the terms and conditions date of an escrow agreement dated as its receipt of the Closing Date by and among funds constituting the Escrow Agent, Parent and Amount until the Stockholder Representative on behalf soonest of:
(i) in the case of the Executing Stockholders, the Executing Option Holders and Non-Owner Participantstermination of this Agreement in accordance with Section 6.3, in a reasonable form mutually agreed upon in good faith by which case, if the Escrow AgentAgent then holds any portion of the Escrow Amount, Parent then: (A) the Escrow Agent shall return the portion of the Escrow Amount received from each Investor which it then holds, to each such Investor, in accordance with written wire transfer instructions received from such Investor; and (B) if Escrow Agent has not received written wire transfer instructions from any Investor before the Stockholder Representative 30th day after such termination date, then the Escrow Agent may, in its sole and absolute discretion, either (x) deposit that portion of the “Escrow Agreement”).Amount to be returned to such Investor in a court of competent jurisdiction on written notice to such Investor, and Escrow Agent shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Escrow Amount pending receipt of written wire transfer instructions from such Investor or an order from a court of competent jurisdiction; OR
(ii) An amount equal to Five Million Dollars ($5,000,000) (in the “Documentation Escrow Amount”) shall be allocated case of the Closing, receipt of written instructions from the Indemnification Company and the Placement Agent that the Closing shall have been consummated, in which case, the Escrow Agent shall release the Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from constituting the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions aggregate purchase price as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of follows: (A) five (5) years following to the Closing Date or Placement Agent, the fees payable to such Placement Agent, and (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid aggregate purchase price to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mad Catz Interactive Inc)
Escrow. (ia) Notwithstanding In connection with each payment of the Installment Payment pursuant to Section 2.2(c) prior to the Installment Payment Discount Expiration Date, where, either the Installment Payment is paid in full, or, as a result of such payment, the aggregate amount of Installment Payment paid would result in an amount less than the Escrow Target Amount remaining to be paid, either (i)(A) Buyers, Sellers and the Escrow Agent shall, if not already entered into, enter into an escrow agreement, in a form to be mutually agreed by Buyers and Sellers acting in good faith (the “Escrow Agreement”) and (B) Buyers shall deposit with the Escrow Agent, on behalf of Sellers and in lieu of delivering such portion of the Installment Payment to Sellers, all or a portion of the Installment Payment paid to Sellers in such payment in cash in an amount equal to (x) if the Installment Payment is being paid in full, the Escrow Target Amount, or (y) if the Installment Payment is being paid in part, an amount equal to the Escrow Target Amount less any amount remaining to be paid by wire transfer in immediately available funds to an account specified by the Escrow Agent pursuant to written instructions given to Buyers by the Escrow Agent no later than two Business Days prior to the applicable payment, and each Seller’s portion of the Installment Payment to be paid on such date will be equal to the Installment Payment to be paid on such date, minus the amount deposited with the Escrow Agent on such date, multiplied by such Seller’s Fraction (in which case the aggregate funds deposited with the Escrow Agent by Buyers pursuant to this Section 2.6(a) and/or Section 2.6(b) shall be referred to as the “Escrow Amount”) or (ii) if at such time the Seller Parents have net assets and liquidity in an amount at least equal to the Escrow Amount that would result were Sellers to elect to act in accordance with Section 2.6(a)(i) at such time, as demonstrated by appropriate financial statements delivered by Sellers, SEMG and the Seller Parents will enter into the Parent Guaranty; provided the Parties agree that the Seller Parents shall decide, in their sole discretion, whether the Parties will act in accordance with Section 2.6(a)(i) or Section 2.6(a)(ii); provided further; however; if the Parties act in accordance with Section 2.6(a)(ii), upon execution of the Parent Guaranty, the Parties agree the rights and obligations of this Section 2.6, without any action by any of the Parties, will no longer be of any force or effect and no Party will have the right to, or to cause any other Party to, enter into the Escrow Agreement.
(b) In addition to and not in limitation of the provisions of Section 2.6(a), as security for certain in connection with each payment of the Installment Payment (partial or in full) pursuant to Section 2.2(c) prior to the Installment Payment Discount Expiration Date, if there are any pending or payable claims with respect to the indemnification obligations of owed to the Executing StockholdersBuyer Indemnified Parties under Article IX with respect to which there has not been a Final Determination (each, a “Pending Claim”) on the Executing Option Holders payment date, then either (i)(A) Buyers, Sellers and Non-Owner Participants set forth in this the Escrow Agent shall, if not already entered into, enter into the Escrow Agreement and (B) Buyers will deposit with the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) Escrow Agent an amount of cash in cash, by wire transfer in immediately available funds, equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount Buyers good faith estimate of cash equal Losses for any such Pending Claims to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf each Seller’s portion of the Executing StockholdersInstallment Payment to be paid on such date will be equal to the Installment Payment to be paid on such date, minus the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by amount deposited with the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
multiplied by such Seller’s Fraction or (ii) An if at such time the Seller Parents have net assets and liquidity in an amount at least equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of at such time, as demonstrated by appropriate financial statements delivered by Sellers, SEMG and the Seller Parents will enter into the Parent Indemnified Guaranty; provided the parties hereto agree that the Seller Parents shall decide, in their sole discretion, whether the Parties that result from a Target Entity’s failure to comply will act in accordance with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”Section 2.6(b)(i) or Section 2.6(b)(ii); providedprovided further; however; if the Parties act in accordance with Section 2.6(b)(ii), however, that nothing contained herein shall prevent a upon execution of the Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing DateGuaranty, the then-remaining balance Parties agree the rights and obligations of this Section 2.6, without any action by any of the Indemnification Escrow AmountParties, less will no longer be of any force or effect and no Party will have the Documentation Escrow Amountright to, shall be released or to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholderscause any other Party to, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in enter into the Escrow Agreement.
(ivc) ThirtyThe Escrow Amount shall be held by the Escrow Agent in the Escrow Account pursuant to this Agreement and the Escrow Agreement and shall constitute part of the Aggregate Purchase Price as provided in Section 2.2. All releases from the Escrow Account shall be made in accordance with this Section 2.6 and the Escrow Agreement. For all Tax purposes, the Parties agree to treat any Escrow Amount as property of Sellers and any income earned with respect to such Escrow Amount as income of Sellers. For the avoidance of doubt, the deposit by Buyers of any portion of the Installment Payment with the Escrow Agent in accordance with this Section 2.6 shall constitute the payment to Sellers of such portion of the Installment Payment for all purposes of this Agreement and any other Transaction Document.
(d) The Escrow Agreement shall provide that releases from the Escrow Account of any portion of the Escrow Amount shall be made only in accordance with (i) written instructions that are jointly signed by Sellers and Buyers, which instructions shall be in a form that complies with the requirements of the Escrow Agreement (a “Joint Instruction Letter”) or (ii) pursuant to a Final Determination specifying the portion of the Escrow Amount to be released from the Escrow Account and the Persons to whom such portion of the Escrow Amount shall be released.
(e) In the event that there is any remaining Escrow Amount in the Escrow Account and Sellers become obligated to any Buyer Indemnified Party under the terms of Section 9.2(a) in respect of any indemnification obligation (as determined by a Final Determination or by mutual written agreement between the Indemnifying Party and the Indemnified Party) then, subject to the limitations on Sellers’ liability under Article IX, at such time, Sellers and Buyers shall execute and deliver a Joint Instruction Letter to the Escrow Agent directing the Escrow Agent to release the portion of the Escrow Amount necessary to satisfy such obligation (or, to the extent the then-six (36) months following the Closing Dateremaining Escrow Amount is insufficient to satisfy such obligation, the then-remaining balance Escrow Amount).
(f) On the Installment Payment Discount Expiration Date (or the first Business Day after such day if such day is not a Business Day), Seller and Buyer shall execute and deliver to the Escrow Agent a Joint Instruction Letter instructing the Escrow Agent to release to Seller the Escrow Balance (except for any portion of the Documentation Escrow Balance that the Escrow Agent has been validly instructed to release to any Buyer Indemnified Party in accordance with this Agreement and the Escrow Agreement but has not actually released as of such date), less a portion of the Escrow Balance with an aggregate value equal to a reasonable reserve amount determined by Buyers in good faith in respect of any and all Claim Notices submitted by any Buyer Indemnified Party prior to such date in accordance with Section 9.3 that remain pending as of such date, and upon the resolution of all such pending claims, if any, and after the payment of any amounts owed to any Person other than Sellers in connection with such claims and in accordance with this Agreement, Buyers and Sellers will promptly execute a Joint Instruction Letter instructing the Escrow Agent to release to Sellers the Escrow Balance. The Parties agree to treat any interest or other income earned with respect to the Escrow Amount as income of Sellers.
(g) Following the resolution, from time to time, of any claim underlying any Claim Notice for which a reserve of a portion of the Escrow Balance was established pursuant to Section 2.6(f), Sellers and Buyers shall be released execute and deliver to the Stockholder Representative (Escrow Agent a Joint Instruction Letter instructing the Escrow Agent to release from the Escrow Account to Sellers, to a Buyer Indemnified Party or its designee) to both, a portion of the Escrow Balance, with an aggregate value equal to such portion of the reserve amount as is appropriate for the benefit resolution of such claim.
(h) In the event of a conflict between the Escrow Agreement and this Agreement, this Agreement shall govern. In the event that Buyers or Sellers receive a release of any portion of the Executing Stockholders, Escrow Balance pursuant to the Executing Option Holders and Non-Owner Participants, subject Escrow Agreement to which it is not entitled pursuant to the terms of this Agreement, such Party shall (i) if another Person is entitled to such portion of the Escrow Balance at such time, transfer such portion of the Escrow Balance to such other Person, or (ii) if no other Person is entitled to such portion of the Escrow Balance at such time, deposit such portion of the Escrow Balance in the Escrow Account with the Escrow Agent to be held and conditions as set forth in released pursuant to the Escrow Agreement.
(vi) Upon the earlier of (A) five (5) years following the Closing Date If either Sellers or (B) the final resolution Buyers fail to timely execute and settlement of all matters and Actions related to the Identified Mattersdeliver a Joint Instruction Letter when required under this Agreement, the then-remaining balance of the Identified Matters Escrow Amount Sellers or Buyers, as applicable, shall be released entitled to the Stockholder Representative seek a Final Determination and/or specific performance (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.1611.12), subject in each case that will enable the Escrow Agent to release to the terms and conditions as set forth in applicable Person or Persons the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share portion of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount Balance to which he they are entitled under this Agreement and to seek to recover Losses from Seller or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative ReserveBuyer, as applicable) through the Company’s payroll, as a result of such failure to comply with this Agreement.
Appears in 1 contract
Escrow. (ia) Notwithstanding anything to the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth contrary contained in this Agreement and Article II, on the other Transaction DocumentsClosing Date, Parent there shall retain be deducted from the Merger Consideration otherwise deliverable payable pursuant to Section 2.6(aSections 2.01(b)(iii) and (iv), (i) an amount on a pro rata basis, the sum of cash equal to Fifteen Twenty Million Dollars ($15,000,00020,000,000) (the “Indemnification Escrow Amount”"Escrowed Funds"), -------------- which sum will be deposited into an interest bearing escrow account, to be held by The Chase Manhattan Bank (the "Escrow Agent") pursuant to an escrow agreement ------------ to be entered into on the Closing Date among Parent, the Surviving Corporation, the Holders, the Holder Representatives and the Escrow Agent in substantially the form annexed hereto as Exhibit 2.05(a) (the "Escrow Agreement"). The ---------------- ----------------- Escrowed Funds will be deposited in accordance with the Cash/Stock Ratio (i.e., 55% of the Escrowed Funds will be cash and 45% of the Escrowed Funds will be shares of Parent Common Stock or Parent Preferred Stock, as the case may be, together with duly endorsed blank stock powers) valued based on the Common Stock Stated Value or the Preferred Stock Stated Value, respectively, as indicated in Section 2.01(a)(ii). In addition, any shares of Parent Common Stock or Parent Preferred Stock, as the case may be, issued from time to time after the Closing Date in respect of the shares of Parent Common Stock or Parent Preferred Stock included in the Escrowed Funds by virtue of any stock split, stock combination, stock dividend or reclassification of shares, reorganization, recapitalization or similar change shall be immediately deposited into the escrow account, together with duly endorsed blank stock powers, and shall, upon deposit, be deemed to be part of the Escrowed Funds for all purposes hereunder. The Escrowed Funds will secure (x) any adjustments to the Merger Consideration as provided for in Section 2.04, and (y) the Holders' indemnification obligations under Articles IX and XI of this Agreement. The Escrowed Funds will be withdrawn or released as follows:
(i) upon the final determination of the Shareholder Equity in accordance with Section 2.04, (A) if Parent is entitled to receive any adjustment of the Merger Consideration, the amount of such adjustment shall be withdrawn from the Escrowed Funds in accordance with Section 2.04, and paid to Parent, within five (5) days after such final determination, and (B) there shall be withdrawn from the Escrowed Funds the amounts necessary to pay any fees payable by the Holders to E&Y and the Independent Firm, as applicable, pursuant to Section 2.04(a)(v), such amounts to be paid directly to E&Y and the Independent Firm, as applicable;
(ii) an amount following the final determination of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), Shareholder Equity in accordance with Section 2.04 and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount andwithdrawal, if applicable pursuant to Section 7.16any, of Escrowed Funds as provided in clause (i) above, a portion of the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall Escrowed Funds will be released to the Parties according to Holders (in accordance with the terms and conditions Cash/Stock Ratio) such that the sum of an escrow agreement dated as $15,000,000 (with the value of the Closing Date by and among Parent Common Stock or the Escrow AgentParent Preferred Stock, Parent and as the Stockholder Representative case may be, to be based on behalf of the Executing StockholdersCommon Stock Stated Value or the Preferred Stock Stated Value, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(iirespectively) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”)will remain as Escrowed Funds; provided, however, that nothing contained herein if less than $15,000,000 (valued in the manner provided above) shall prevent a remain after the withdrawal as provided in clause (i) above, each Holder, within five (5) days after such withdrawal, shall deposit such additional cash and, at each Holder's option, shares of Parent Indemnified Party’s recovery from Common Stock or Parent Preferred Stock, as the Indemnification Escrow Amount case may be (valued in respect the manner provided above, but not to exceed forty-five percent (45%) of indemnification claims the amount required to be deposited) as needed to cause the Escrowed Funds to be $15,000,000 (such deposit to be made pursuant by the Holders, pro rata, based on the respective portion of the Merger Consideration that each Holder is entitled to Article IX.receive under Sections 2.01(b)(iii) and (iv)); and
(iii) Eighteen the remaining Escrowed Funds (18) months following the Closing Dateincluding any undistributed interest earned thereon), the then-remaining balance of the Indemnification Escrow Amountif any, less the Documentation Escrow Amount, shall will be released to the Stockholder Representative Holders on the first (or its designee1st) for the benefit anniversary of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date; provided, however, that if prior to such first (1st) -------- ------- anniversary Parent or the Surviving Corporation shall give notice of a claim or claims for indemnification pursuant to Articles IX or XI of this Agreement, then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of : (A) if any such claim is resolved prior to such first (1st) anniversary, by judicial determination or otherwise, any sums due Parent or the Surviving Corporation shall be withdrawn from the Escrowed Funds and paid to Parent or the Surviving Corporation, within five (5) years following the Closing Date days after such resolution; or (B) the final resolution and settlement of all matters and Actions related if any such claim is not resolved prior to the Identified Matterssuch first (1st) anniversary, the then-remaining balance amount of such claim, plus the Identified Matters Escrow Amount reasonably estimated amount of legal fees and disbursements to be incurred in connection therewith, shall be released retained as Escrowed Funds until such claim is resolved. Any amounts to the Stockholder Representative (be withdrawn or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent be retained pursuant to Section 2.7(b)clause (A) or (B) above shall be released to withdrawn or retained, respectively, as follows: (x) if such claim is a Third Party Claim (as defined in Section 9.06(b)), first from Escrowed Funds consisting of cash, and thereafter from shares of Parent Common Stock or Parent Preferred Stock, as the Stockholder Representative case may be, and (or its designeey) for the benefit of the Executing Stockholdersif such claim is not a Third Party Claim, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16the Cash/Stock Ratio or, subject at the option of the Holder Representatives, in cash. For purposes of determining the number of shares of Parent Common Stock (if applicable) to the terms and conditions be withdrawn or to be retained as set forth in the Escrow Agreement.
Escrowed Funds under this clause (viii) When paid in accordance with Section 2.6(c)(iviii), the Parent Common Stock shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein a value equal to the contraryCommon Stock Stated Value. For purposes of determining the number of shares of Parent Preferred Stock (if applicable) to be withdrawn or to be retained as Escrowed Funds under this clause (iii), any such amounts payable from the Escrow Account and any amounts payable from Parent Preferred Stock shall be deemed to have a value equal to the Stockholder Representative Reserve Preferred Stock Stated Value. Any Escrowed Funds released to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date Holders shall be paid to the CompanyHolders, pro rata, based on the respective portion of the Merger Consideration that each Holder is entitled to receive pursuant to Section 2.01(b)(iii) and (iv), it being agreed that no Escrowed Funds shall be released to any Holder in respect of the Company Redeemable Preferred Stock.
(b) In addition, notwithstanding anything to the contrary contained in this Article II, on the Closing Date, there shall be deducted from the Merger Consideration payable pursuant to Sections 2.01(b)(iii) and (iv), on a pro rata --- ---- basis, an additional sum, in cash, in the amount (the "Additional Escrowed ---------- -------- Funds") specified in the letter agreement to be entered into on the Closing Date ----- among Parent, the Surviving Corporation, the Holders and the Holder Representatives in substantially the form annexed hereto as Exhibit 2.05(b)(i) ------------------- (the "Letter Agreement"). The Additional Escrowed Funds will be deposited into ----------------- an interest bearing escrow account to be held by the Escrow Agent pursuant to an escrow agreement to be entered into on the Closing Date among Parent, the Surviving Corporation, the Holders, the Holder Representatives and the Escrow Agent in substantially the form annexed hereto as Exhibit 2.05(b)(ii) (the ------------------- "Additional Escrow Agreement", and, together with the Escrow Agreement, ----------------------------- collectively, the "Escrow Agreements"), and will be withdrawn or released in ------------------ accordance with the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date terms of the release from Letter Agreement and the Additional Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollAgreement.
Appears in 1 contract
Escrow. (a) Purchaser and the Sellers hereby appoint the Escrow Agent to serve in such capacity hereunder. No later than the Closing Date, Purchaser shall cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing the Purchase Price, to be paid to an escrow account of the Escrow Agent set forth on Exhibit A attached hereto (the aggregate amounts received being held in escrow by the Escrow Agent are referred to herein as the "Escrow Amount"). Simultaneously with the execution and delivery of this Agreement, Seller shall promptly deliver to the Escrow Agent (i) Notwithstanding the provisions Purchased Debentures (ii) the Outstanding Warrants, (iii) a UCC termination statement terminating Seller's lien on the Company's assets, (iv) any release of Section 2.6(a)security interest that are necessary to release, as of record, the Sellers' security for certain interest in any of the indemnification obligations Purchasers' trademarks, patents and copyrights (the "IP Lien Release") or in any other Purchaser's assets as to which the Sellers have a lien, and (v) certificates representing the Pledged Securities under the Amended and Restated Security Agreement dated as of June 30, 2008 among the Company, all of the Executing Stockholderssubsidiaries of the Company, the Executing Option Holders holders of the Company's Senior secured convertible debentures due June 30, 2014 and Non-Owner Participants issued on the date thereof in the original aggregate principal amount of $26,140,355.91 signatory thereto, their endorsees, transferees and assigns and Enable Growth Partners, LP as agent for the secured parties, and the Security Agreement dated August 30, 2007 among the Company, all of its subsidiaries and the holders of the Company’s original issue discount 6% senior secured convertible debentures due June 30, 2009 and issued on August 30, 2007 in the original aggregate principal amount of $8,001,000 signatory thereto, their endorsees, transferees and assigns (collectively, the "Security Agreements"). The Escrow Agent shall hold the Escrow Amount, Purchased Debentures, the Outstanding Warrants, the UCC termination statement. the IP Lien Release and the certificates for the Pledged Securities in escrow (and any other relevant lien release documents) in accordance with Section 1.4 and (c) below.
(b) The Escrow Agent shall hold the Escrow Amount, the Purchased Debentures, the Outstanding Warrants, the UCC termination statement, IP Lien Release, and any other relevant lien release documents and the certificates for the Pledged Securities delivered to the Escrow Agent pursuant to Section 1 in escrow in accordance with and subject to this Agreement until the receipt of written instructions signed by the Sellers and the Purchaser that the conditions to the Closing have been satisfied (the "Release Instructions"). Upon receipt of the Release Instructions, the Escrow Agent shall release to each Seller that part of the Escrow Amount constituting the Purchase Price set forth opposite such Seller's name on column (3) of the Securities Schedule attached hereto in accordance with written wire transfer instructions received from such Seller, and shall release to Purchaser the Purchased Debentures the Outstanding Warrants, the UCC termination statement, the IP Lien Release, and any other relevant lien release documents and the certificates for the Pledged Securities.
(c) Upon satisfaction of the conditions to Closing and upon notice (the "Delivery Confirmation") from Purchaser to the Sellers that the Escrow Amount has been delivered to the Escrow Agent, the Purchaser together with each of the Sellers shall deliver the Release Instructions. If Sellers fail to deliver the Release Instructions to the Escrow Agent after delivery by Purchaser to the Sellers of the Delivery Confirmation, Purchaser may, at its option, direct the Escrow Agent to deliver to Purchaser the Purchased Debentures the Outstanding Warrants, the UCC termination statement, the IP Lien Release, and the certificates for the Pledge Securities, and any other relevant lien release documents and if Purchaser so directs the Escrow Agent, contemporaneously with the delivery of the Purchased Debentures the Outstanding Warrants, the UCC termination statement, the IP Lien Release, and any other relevant lien release documents and the certificates for the Pledged Securities to Purchaser, the Escrow Agent shall deliver to the Sellers the Escrow Amount. If Purchaser fails to deliver the Release Instructions to the Escrow Agent after the Escrow Agent has received the Purchased Debentures the Outstanding Warrants, the UCC termination statement, the IP Lien Release and the certificate for the Pledged Securities and any other relevant lien release documents from the Seller and has received the Escrow Amount from Purchaser, Sellers may instruct the Escrow Agent to deliver to the Sellers the Escrow Amount and if Sellers so instructs the Escrow Agent, contemporaneously with the delivery of the Escrow Amount to Sellers, the Escrow Agent shall deliver to Purchaser the Purchased Debentures the Outstanding Warrants, the UCC termination statement, the IP Lien Release, and any other relevant lien release documents and the certificates of the Pledged Securities.
(d) It is expressly understood that the Escrow Agent acts hereunder as an accommodation to the Purchaser and the Sellers and as a depository only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of any instrument deposited with it, or for the form of execution of such instruments or for the identity, authority or right of any person executing or depositing the same or for the terms and conditions of any instrument pursuant to which the Escrow Agent or the parties may act.
(e) The Escrow Agent shall no have duties or responsibilities except those set forth in this Agreement and shall incur no liability, other than by its own gross negligence, willful misconduct or fraud, in acting upon any signature, notice, request, waiver, consent, receipt or other paper or document believed by the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant Escrow Agent to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”)be genuine, and the Escrow Agent may assume that any person purporting to give it any notice on behalf of any party in accordance with the provisions hereof has been duly authorized to do so. The Purchaser and the Sellers acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement and shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care beyond what Escrow Agent gives its own similar property. The Purchaser and the Sellers hereby jointly and severally agree to indemnify and save the Escrow Agent harmless from and against any and all loss, damage, claims, liabilities, judgments and other costs and expenses of every kind and nature which may be incurred by the Escrow Agent (iiiincluding attorneys' fees) an amount by reason of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”its acceptance of, and collectively with its performance under, this Agreement unless caused by the Indemnification gross negligence, willful misconduct or fraud of the Escrow Agent. Absent the Escrow Agent's gross negligence, willful misconduct or fraud, the Escrow Agent shall be automatically released from all responsibility and liability under this Agreement upon the Escrow Agent's distribution of the Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16Purchased Debentures, the JV Buyout Escrow AmountOutstanding Warrants, the “UCC termination statement, the IP Lien Release and the certificates for the Pledged Securities in accordance with the provisions of this Agreement..
(f) This Agreement sets forth exclusively the duties of the Escrow Amount”), Agent with respect to any and shall deposit such amounts at Closing into an account all matters pertinent thereto and no implied duties or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount obligations shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow read into this Agreement.
(ivg) Thirty-six (36) months following the Closing Date, the then-remaining balance The Purchaser acknowledges that Escrow Agent represents some or all of the Documentation Escrow Amount shall be released to Sellers on other legal matters and has represented the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth Sellers in the Escrow connection with this Agreement.
(vh) Upon the earlier The provisions of (A) five (5) years following the Closing Date or (B) the final resolution and settlement this Section 1.4 shall survive any termination of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow this Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Escrow. 9.1 Closing The escrow (ithe “Escrow”) Notwithstanding for the consummation of this transaction shall be established with Escrow Holder at the address indicated in Section 15.1 hereof by the deposit of an original signed copy of this Agreement with Escrow Holder contemporaneously with the execution hereof. This Agreement shall constitute both an agreement among Buyer and Seller and escrow instructions for Escrow Holder. If Escrow Holder requires separate or additional escrow instructions which it deems necessary for its protection, Seller and Buyer hereby agree promptly upon request by Escrow Holder to execute and deliver to Escrow Holder such separate or additional escrow instructions (the “Additional Instructions”). In the event of any conflict or inconsistency between this Agreement and the Additional Instructions, this Agreement shall prevail and govern, and the Additional Instructions shall so provide. The Additional Instructions shall not modify or amend the provisions of this Agreement unless otherwise agreed to in writing by Seller and Buyer. On the Closing Date, provided that the conditions set forth in Sections 7.1 and 7.2 hereof have been satisfied or waived, Escrow Holder shall take the following actions in the order indicated below:
(a) With respect to all closing documents delivered to Escrow Holder hereunder, and to the extent necessary, Escrow Holder is authorized to insert into all blanks requiring the insertion of dates the date of the recordation of the Deed or such other date as Escrow Holder may be instructed in writing by Seller and Buyer;
(b) Record the Deed in the official records of Orange County, California;
(c) Deliver to Seller, in cash or current funds, the Purchase Price, plus or minus, as the case may be, the amounts determined in accordance with the provisions of Section 2.6(a)10 hereof and as shown on the Closing Statement, as security for certain Buyer’s original signed counterpart of the indemnification obligations Assignment of Contracts and ▇▇▇▇ of Sale and General Assignment, and conformed copies of the Executing Stockholders, the Executing Option Holders recorded Deed;
(d) Deliver to Buyer those items referred to in Section 6.1 hereof and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as a conformed copy of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).recorded Deed;
(iie) An amount equal Cause the Title Company to Five Million Dollars ($5,000,000) (issue the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) Title Policy for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released Real Property in accordance with the provisions of Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.4.2.3 hereof; and
(viiif) When paid in accordance with Section 2.6(c)(iv), Parent shall Deliver to Seller and Buyer a final closing statement which has been certified by Escrow Holder to be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder true and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollcorrect.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Banc of California, Inc.)
Escrow. (i) Notwithstanding the provisions any provision of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and to the other Transaction Documentscontrary, in lieu of delivering to holders of shares of Company Common Stock certificates for the full number of shares of Parent Common Stock provided for in Section 2.7, Parent shall retain from deliver or cause to be delivered (A) to each such holder one or more certificates, registered in the Merger Consideration name of such holder (subject to Section 2.8(e)), for a number of shares of Parent Common Stock equal to 90% of the aggregate number of shares of Parent Common Stock otherwise deliverable issuable to such holder pursuant to Section 2.6(a2.7; and (B) to State Street Bank and Trust Company as escrow agent (the "Escrow Agent") for deposit into the escrow fund (the "Escrow Fund") provided for in the escrow agreement in the form attached as Exhibit 2.8 hereto (the "Escrow Agreement"), (i) an amount to secure the indemnity obligations under Section 11.2, one or more certificates, registered in the name of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, for a number of shares of Parent and Common Stock equal to the Stockholder Representative on behalf Escrow Amount out of the Executing Stockholdersaggregate number of shares of Parent Common Stock otherwise issuable pursuant to Section 2.7 upon conversion of all of the shares of Company Common Stock issued and outstanding immediately prior to the Effective Time, all of which will be held as part of the Executing Option Holders Escrow Fund and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith disposed of by the Escrow Agent, Parent and Agent in accordance with the Stockholder Representative (provisions of the “Escrow Agreement”).. Such shares shall be beneficially owned by the holders on whose behalf such shares were deposited in the Escrow Fund and shall be available to compensate the Parent Indemnitees as provided in Article 11. The Escrow Agreement is incorporated herein by reference and shall be considered part of this Agreement. By voting for or failing to dissent from the approval of this Agreement, each Company Shareholder automatically and without any further act or deed irrevocably agrees that:
(iiA) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) such Company Shareholder accepts and shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to bound by the terms and conditions provisions of the Escrow Agreement; and
(B) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (or his successor as set forth provided in the Escrow Agreement.
) is appointed Shareholder Representative (ivthe "Shareholder Representative") Thirty-six (36) months following the Closing Date, the then-remaining balance for purposes of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) Agreement with all rights, powers and authority provided for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon Agreement and that any action taken by the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related Shareholder Representative pursuant to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount Agreement shall be released conclusive, valid, binding and enforceable with respect to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollShareholder.
Appears in 1 contract
Sources: Merger Agreement (Atmi Inc)
Escrow. (ia) Notwithstanding On the Closing Date, the Sellers (directly or indirectly) shall transfer (on a pro-rata basis, in the proportions set forth in Exhibit A) an amount equal to 10% (ten percent) of the Enterprise Value (the "Escrow Amount"), to the Escrow Agent, to secure, on a joint and several basis and without distinction among the Sellers, payment of any amounts that may be due by any of the Sellers to the Buyer pursuant to Article XII. The Escrow Amount shall remain subject to the escrow agreement entered into by each of the Escrow Agent, the Sellers and the Buyer, which shall be executed in form and substance reasonably acceptable to the Buyer (the "Escrow Agreement"), until the date which occurs two (2) years and six (6) months from the date hereof.
(b) Subject to any unresolved claims arising pursuant to the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing StockholdersArticle XII, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according Sellers (on the basis and to the terms and conditions of an escrow agreement dated bank accounts specified in writing by the Sellers' Representative) in four (4) installments, as follows:
(i) On the first (1st) anniversary of the Closing Date by and among Date, the Sellers shall be entitled to receive forty percent (40%) of the Escrow AgentAmount, Parent and minus (1) any amount paid to the Stockholder Representative on behalf Buyer from the Escrow Amount as payment of any claim under Article XII during the year preceding the first (1st) anniversary of the Executing StockholdersClosing Date, the Executing Option Holders and Non-Owner Participantsminus (2) any Requested Holdback or Firm Holdback Amount, as applicable, with respect to unresolved Claim Notices, plus (3) any interest accrued in a reasonable form mutually agreed upon in good faith by respect of the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”)Amount.
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following after the Closing Date, the then-remaining balance Sellers shall be entitled to receive twenty (20%) of the Indemnification Escrow Amount, less minus (1) any amount paid to the Documentation Buyer from the Escrow Amount as payment of any claim under Article XII that either corresponds to the period from the first (1st) anniversary of the Closing Date to the date in which eighteen (18) months from the Closing Date have elapsed or, if pertaining to the prior period, was not already deducted under (i) above, minus (2) any Requested Holdback or Firm Holdback Amount, as applicable, with respect to unresolved Claim Notices submitted prior to the date in which eighteen (18) months from the Closing Date have elapsed, plus (3) any interest accrued in respect of the Escrow Amount.
(iii) On the second (2nd) anniversary of the Closing Date, the Sellers shall be entitled to receive twenty (20%) of the Escrow Amount, minus (1) any amount paid to the Buyer from the Escrow Amount as payment of any claim under Article XII that either corresponds to the period from the date in which eighteen (18) months from the Closing Date have elapsed to the second (2nd) anniversary of the Closing Date or, if pertaining to the prior period, was not already deducted under (i) above, minus (2) any Requested Holdback or Firm Holdback Amount, as applicable, with respect to unresolved Claim Notices submitted prior to the second (2nd) anniversary of the Closing Date, plus (3) any interest accrued in respect of the Escrow Amount.
(iv) Thirty (30) months after the Closing Date, the Sellers shall be entitled to receive any Available Escrow Amount as of such date, minus (1) any Requested Holdback or Firm Holdback Amount, as applicable, with respect to unresolved Claim Notices submitted prior to the date in which thirty (30) months from the Closing Date have elapsed, plus (2) any interest accrued in respect of the Escrow Amount.
(c) Subject to the terms hereof, the Buyer shall have no responsibility in respect of the allocation of the amounts released from the Available Escrow Account or in connection with whether the applicable Sellers receive the released amounts, other than, if applicable, causing the transfer of the released amounts to the relevant accounts by the Escrow Agent.
(d) If on the dates in which an amount is scheduled to be released under the Escrow Agreement, as set forth in clause (b) of this Section 2.3, including on the date in which the thirty (30) months from the Closing Date have elapsed, there are one (1) or several claims hereunder that remain unresolved, the applicable portions of the Escrow Amount shall remain in escrow pursuant to the Escrow Agreement, but the Buyer may only collect the applicable amounts (i) as a result of agreement between the Buyer and the Sellers' Representative, or (ii) if a final judgment, not subject to appeal, resolves such claim (either (i) or (ii), a "Final Resolution"), provided that upon Final Resolution of a claim, any excess amount (not subject to any other claim), shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow AgreementSellers.
(ive) Thirty-six (36) months following the Closing Date, the then-remaining balance The Parties acknowledge and agree that if any of the Documentation Escrow Amount shall be released Requested Holdbacks referred to the Stockholder Representative in item (or its designeeb) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent above are reduced pursuant to Section 2.7(b)) 12.5 when becoming Firm Holdback Amounts, then the Escrow Agent shall be released immediately release to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject Sellers an amount equal to the terms and conditions as set forth in difference between (i) the Escrow Agreementrelevant Requested Holdback, minus (ii) the corresponding Firm Holdback Amount.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Escrow. The purchase price for the sale of the notes will be placed in escrow pending completion of the acquisition of oil and gas properties from Plains Exploration & Production Company (the “Acquisition”) and MMR’s raising additional capital in an amount of $500 million from Freeport-McMoRan Copper & Gold Inc. (the “Additional Financing”). Any amounts held in escrow may be invested in certain specific investments as directed by MMR. The release of the purchase price for the sale of the notes from the escrow account to MMR as payment for the notes, and issuance thereof, is conditioned upon the concurrent completion of the Acquisition and the Additional Financing. If (i) Notwithstanding the provisions of Section 2.6(a)Acquisition and Additional Financing are not consummated on or prior to March 31, as security for certain of the indemnification obligations of the Executing Stockholders2011, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), or (ii) MMR provides notice that the Acquisition or Additional Financing will not be consummated, then, in any such case, the escrow agent will promptly return holders’ funds to them, with a commitment fee in an amount of cash equal to One Million Two Hundred Thousand Dollars 4% per annum in respect of the time period during which holders’ funds were held in escrow, which will be funded by a combination of MMR’s separate payment and interest earned on the funds while held and invested in escrow, and MMR will not issue the notes. If the conditions to closing specified above are satisfied, then ($1,200,000x) the escrow agent will release holders’ funds to MMR concurrently upon MMR’s issuance of the notes to the holders that placed funds in escrow, (y) MMR will pay to the “Adjustment Escrow Amount”)holders a commitment fee in an amount equal to 2% per annum in respect of the time period during which holders’ funds were held in escrow, which will be funded by a combination of MMR’s separate payment and interest earned on the funds while held and invested in escrow, and (iiiz) an amount of cash equal to One Million Dollars ($1,000,000) (interest on the notes will accrue at the rate specified opposite “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated Interest” above from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from date on which the notes were originally issued. Registration Rights: MMR will enter into a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) registration rights agreement for the benefit of the Executing Stockholdersholders of the notes, pursuant to which it will agree to file a shelf registration statement under the Executing Option Holders and Non-Owner ParticipantsSecurities Act of 1933, subject as amended (the “Securities Act”), relating to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance resale of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, notes and the Company shall pay the applicable recipient the amount shares of common stock issuable upon conversion thereof. MMR will use its commercially reasonable efforts (i) to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit cause such shelf registration statement to the applicable Governmental Authority) as soon as practicable (but in become effective no event later than the Company’s next payroll date 30 days after the date of original issuance of the release from notes, and (ii) to keep it effective until such date that all of the Escrow Account notes and the MMR common stock issuable upon conversion thereof cease to be outstanding or Stockholder Representative Reserve, as applicablehave either been (x) through sold or otherwise transferred pursuant to an effective registration statement or (y) sold pursuant to Rule 144 under circumstances in which any legend borne by the Companynotes or common stock relating to restrictions on transferability thereof is removed or such notes or common stock are eligible to be sold by the holders thereof (other than MMR’s payrollaffiliates) without restriction pursuant to the volume limitations of Rule 144 under the Securities Act or any successor rules thereto or otherwise.
Appears in 1 contract
Sources: Securities Purchase Agreement (McMoran Exploration Co /De/)
Escrow. (ia) Notwithstanding At Closing Buyer shall withhold from the provisions Cash Consideration and furnish to Escrow Agent the Sellers’ Contribution to Escrow. The Sellers’ Contribution to Escrow shall be contributed by the Sellers of Section 2.6(a), as security for certain each Company in the percentages described in the table below. The Escrow Account shall consist of two separate subaccounts: (1) a subaccount in the amount of the indemnification obligations Base Escrow, consisting of Sellers’ Contribution to the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in Base Escrow under this Agreement and the other Transaction Documents, Parent shall retain a contribution from the Merger Consideration otherwise deliverable pursuant sellers under the San Francisco SPA, all of which is available to satisfy indemnification amounts owed by the Sellers and Seller Principals to Buyer Indemnified Parties under Section 2.6(a9 of this Agreement and Section 9 of the San Francisco SPA, and (2) a subaccount in the amount of US$[***] as the Tax Escrow, consisting of US$[***] as Sellers’ Contribution to the Tax Escrow under this Agreement, and US$[***] as a contribution from the Sellers under the San Francisco SPA, all of which is available to satisfy indemnification amounts owed by the Sellers and Seller Principals to Buyer Indemnified Parties under Section 9.02(d), 9.02(e) and 9.02(g) of this Agreement (i) an amount of cash equal claims relating to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”Taxes), and (iiiunder Section 9.02(d) an amount and 9.02(e) of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”San Francisco SPA), each of which will be held and collectively disbursed in accordance with the Indemnification terms of the Escrow Amount, Agreement in substantially the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts form attached hereto (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released subject to the Parties according to the terms and conditions approval of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the ) as Exhibit C. The Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount Agent Fee shall be paid or released 50% by Buyer and 50% by Sellers as provided in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement2.08.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Escrow. At the Closing, Parent shall deposit (a) (i) Notwithstanding the provisions of Section 2.6(a), as security for certain of Indemnification Escrow Amount and (ii) the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Special Indemnification Escrow Amount”), (ii) an amount in each case, with the Escrow Agent to provide a source of cash equal funding to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”)Indemnified Parties for any Losses for which they are entitled to be indemnified pursuant to Article IX, and (iiib) an amount the Adjustment Escrow Amount with the Escrow Agent to provide a source of cash equal to One Million Dollars ($1,000,000) (funding for the “Identified Matters adjustment provisions in Section 2.15. The Indemnification Escrow Amount”, the Special Indemnification Escrow Amount and collectively with the Adjustment Escrow Account shall be held in trust by the Escrow Agent (for a period of one (1) year in the case of the Indemnification Escrow Amount, the Special Indemnity Period (as defined below) in the case of the Special Indemnification Escrow Amount and six (6) months in the case of the Adjustment Escrow Amount and, if applicable Amount) pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an the escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable customary form mutually agreed upon to be negotiated in good faith and mutually agreed to by the Escrow Agent, Parent and the Stockholder Representative parties thereto (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) and shall be allocated from released in accordance with the Indemnification Escrow Amount to address Losses of Parent Indemnified terms thereof. The Parties hereby acknowledge and agree that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance each of the Indemnification Escrow Amount, less the Documentation Special Indemnification Escrow Amount, shall be released to Amount and the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Adjustment Escrow Amount shall be released to the Stockholder Representative (or its designee) treated as an installment obligation for the benefit purposes of Section 453 of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the CompanyCode, and the Company no party shall pay the applicable recipient the amount to which he take any action or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollfiling position inconsistent with such characterization.
Appears in 1 contract
Escrow. (i) Notwithstanding No later than 10 Business Days after the provisions of Section 2.6(a)Closing, as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders Transferee and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent Transferor shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing enter into an account or accounts a mutually acceptable escrow agreement (the “Escrow AccountAgreement”) with U.S. Bank, N.A. an escrow agent selected by Newco and reasonably acceptable to the Transferor (the “Escrow Agent”). The Escrow Amount Agreement shall be released to provide for the Parties according to the terms and conditions establishment of an escrow agreement dated fund (the “Escrow Fund”) to be funded by Newco on the date the Escrow Agreement is entered into in the amount of the Escrow Amount, which Escrow Fund shall be held by the Escrow Agent in accordance with the terms of this Section 8.11. Each of Newco and Transferee shall have the right to notify the Escrow Agent of any claim for indemnification made by any Transferee Indemnified Person pursuant to this Article VIII (an “Escrow Claim Notice”). Promptly following the final determination in accordance with this Article VIII of any claim for indemnification made by any Transferee Indemnified Person pursuant to this Article VIII (including a request for advancement of expenses pursuant to this Article VIII), upon request by Transferee or Newco, Transferor shall execute and deliver a certificate requesting the Escrow Agent to deliver by wire transfer to an account designated by Transferee immediately available funds in the amount of such claim as finally determined in accordance with this Article VIII. On the fifth (5th) anniversary of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow AgreementRelease Date”).
, Transferee and Transferor shall execute and deliver to the Escrow Agent a certificate requesting the Escrow Agent to deliver by wire transfer to Transferor all amounts that remain in the Escrow Fund, less the sum of any amounts subject to claims for indemnification that (i) have not been finally determined before the Escrow Release Date in accordance with this Article VIII and (ii) An amount equal to Five Million Dollars ($5,000,000) (are the “Documentation subject of Escrow Amount”) shall be allocated from Claim Notices provided before the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from Release Date. If at any time after the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following Release Date the Closing Date, the then-entire balance remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following Fund exceeds the Closing Date, the then-remaining balance sum of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, any amounts subject to the terms and conditions as set forth in the Escrow Agreement.
claims for indemnification that (vi) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released have not been finally determined in accordance with Section 7.16this Article VIII as of such time and (ii) are the subject of Escrow Claim Notices provided before such time, subject to the terms at Transferor’s request, Transferee and conditions as set forth in Transferor shall execute and deliver a certificate requesting the Escrow AgreementAgent to deliver such excess to Transferor by wire transfer.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Assignment and Assumption Agreement (Penson Worldwide Inc)
Escrow. (i) Notwithstanding On the provisions of Section 2.6(a)Closing Date, the Purchaser shall pay to ▇▇ ▇▇▇▇▇▇ Chase, as security for certain of agent to the indemnification obligations of the Executing StockholdersPurchaser, the Executing Option Holders and Non-Owner Participants set forth in this Agreement Seller and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. Sellers’ Representative (the “Escrow Agent”). The Escrow Amount shall be released , to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith account designated by the Escrow Agent, Parent the Escrow Amount, in accordance with the terms of Section 3.2 of this Agreement and the Stockholder Representative (the “Escrow Agreement”. Excluding payments arising under Section 3.3 (including any failure to make such payments arising under Section 3.3).
, any payment that a Seller Party is obligated to make to any Purchaser Indemnified Party pursuant to this Article X (ii) An amount equal to Five Million Dollars ($5,000,000) (the each, a “Documentation Escrow AmountClaim”) shall be allocated paid first, to the extent there are sufficient funds in the Escrow Account, from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties Account. On the date that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) is 18 months following the Closing DateDate (such date, the then-remaining balance of “Escrow Termination Date”), the Indemnification Escrow Amount, less Agent shall release the Documentation Escrow Amount, shall be released Amount plus all accrued interest thereon (to the Stockholder Representative (or its designeeextent not utilized to pay any Purchaser Indemnified Party for any Claim) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in Seller, except that the Escrow Agreement.
Agent shall retain an amount (iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released up to the Stockholder Representative (or its designeetotal amount then held by the Escrow Agent) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject equal to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement amount of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) Claims for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released indemnification under this Article X asserted in accordance with Section 7.16, subject 10.3 prior to the Escrow Termination Date but not yet resolved (“Unresolved Claims”). The Escrow Amount retained for Unresolved Claims shall be released by the Escrow Agent (to the extent not utilized to pay the Purchaser Indemnified Parties for any such claims resolved in favor of the Purchaser Indemnified Parties) upon their resolution in accordance with this Article X and the terms and conditions as set forth in of the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent . The Purchaser and the Sellers’ Representative shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of jointly instruct the Escrow Account. Notwithstanding anything herein Agent in writing to release the contrary, any such amounts payable funds from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, in accordance with this Article X and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date other terms of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollthis Agreement.
Appears in 1 contract
Escrow. (i) Notwithstanding On the provisions of Section 2.6(a)Closing Date, as security for certain HBC, the Company and the Stockholders’ Representative, on behalf of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing enter into an account or accounts escrow agreement in the form attached hereto as Exhibit A (the “Escrow AccountAgreement”) with U.S. Bank, N.A. a bank or a licensed escrow agent (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms , and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow AgentHBC, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, shall deposit into an interest bearing account in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative escrow (the “Escrow AgreementAccount”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (, the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect such amounts attributed to each Stockholder as set out on the Spreadsheet. The Escrow Account shall be available for the payment of claims by the HBC Indemnified Parties for indemnification claims made pursuant to Article IX.
VIII. The Escrow Account shall also be available to HBC (iiiat its sole option) Eighteen for any of the Settlement Amount due HBC as set forth in Section 1.05. The Escrow Agreement shall provide for the release to each Stockholder any undisputed amounts remaining in the Escrow Account on the fifteenth (15th) day following the eighteen (18) months following month anniversary of the Closing Date, . Each Stockholder’s respective interest in the then-remaining balance Escrow Account shall equal the amount of the Indemnification Escrow Account, plus any interest that accrues in respect of the Escrow Amount, less multiplied by the Documentation Pro Rata Percentage Interest. All obligations to reimburse the Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions Agent as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount Agreement shall be released to payable 50% by HBC and 50% by the Stockholder Representative Stockholders (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in their Pro Rata Percentage Interest) upon demand by the Escrow AgreementAgent.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Escrow. (i) Notwithstanding Purchaser and the provisions Sellers hereby appoint the Escrow Agent to serve in such capacity hereunder. Simultaneously with the execution and delivery of Section 2.6(a)this Agreement, as security for certain Purchaser, shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing the Purchase Price, to be paid to an escrow account of the indemnification obligations Escrow Agent set forth on Exhibit A attached hereto (the aggregate amounts received being held in escrow by the Escrow Agent are referred to herein as the “Escrow Amount”). Simultaneously with the execution and delivery of this Agreement, Sellers shall promptly deliver to the Escrow Agent the Debentures and at least five undated stock powers duly manually endorsed for transfer in blank (the "Stock Powers") and the Company shall deliver to Escrow Agent the New Debentures registered in the name of the Executing StockholdersPurchaser and the instructions to the Company’s transfer agent (Computershare) to deliver the Converted Shares pursuant to Section 1(b). The Escrow Agent shall hold the Escrow Amount, Debentures, New Debentures and Stock Powers in escrow in accordance with Section 1(g)(ii) and (iii) below. The Company expressly waivers and requirement that the stock powers contain any signature guarantee or other third-party evidence of authenticity, and agrees to accept the same from the Escrow Agent “as-is” as delivered to the Escrow Agent by the Sellers.
(ii) The Escrow Agent shall hold the Escrow Amount, the Executing Stock Powers, the Debentures and the New Debentures delivered to the Escrow Agent pursuant to Section 1(g)(i) of this Agreement, in escrow in accordance with and subject to this Agreement until the receipt of written instructions signed by the Sellers, the Purchaser and the Company that the conditions to the Closing have been satisfied (the "Release Instructions"). Upon receipt of the Release Instructions, the Escrow Agent shall release to Sellers that part of the Escrow Amount constituting the Purchase Price set forth opposite Sellers’ name on column (7) of the Securities Schedule attached hereto in accordance with written wire transfer instructions received from Sellers, and shall release to Purchaser the New Debenture. The Escrow Agent shall deliver the Debentures to the Company and the Company will cancel the Purchased Debentures and re-issue certificates for the Remaining Debentures back to the Escrow Agent. Upon notice (the "Delivery Confirmation") from the Escrow Agent that the Escrow Amount, the Debentures, the New Debentures and the Stock Powers have been delivered to the Escrow Agent, the Purchaser together with the Sellers and the Company shall deliver the Release Instructions. If Purchaser fails to deliver the Release Instructions to the Escrow Agent within 3 business days after delivery by the Escrow Agent to Purchaser of the Delivery Confirmation, the Sellers may, at their option, direct the Escrow Agent to deliver to the Sellers the Stock Power and the Debentures and if the Sellers deliver such instruction, contemporaneously with the delivery of the foregoing to the Sellers, the Escrow Agent shall deliver to Purchaser the Escrow Amount. If the Sellers fail to deliver the Release Instructions to the Escrow Agent within 3 business days after the Escrow Agent has delivered the Delivery Confirmation to the Sellers, Purchaser may instruct the Escrow Agent to deliver to the Purchaser the Escrow Amount and if Purchaser delivers such instruction, contemporaneously with the delivery of the foregoing to Purchaser, the Escrow Agent shall deliver to the Sellers the Stock Power and the Debentures.
(iii) Upon delivery of an Exercise Notice to the Sellers, the Purchaser shall deliver a copy of such notice to the Escrow Agent and deliver the Option Holders Price for the Remaining Debenture covered by such Exercise Notice to the Escrow Agent in United States Dollars in immediate available funds within three (3) business days following the Exercise Date. Upon receipt of an Exercise Notice, the Escrow Agent shall submit the Remaining Debentures to the Company and Nonthe Company shall re-Owner Participants issue a certificate for the Remaining Debentures covered by the Exercise Notice registered in the name of the Purchaser, free and clear of any claim, pledge, charge, lien and any other encumbrance whatsoever, and re-issue the balance of the Remaining Debentures, if any, in the name of the Sellers. Upon receipt by the Escrow Agent of the Remaining Debentures subject to the Exercise Notice registered in the name of the Purchasers, the Escrow Agent shall release the Remaining Debentures so purchased to the Purchaser and the Option Price to the Sellers. The exercise of the Option shall be applied pro-rata to Sellers according to the outstanding principal amount of Remaining Debentures then held by the Sellers. Following the Option Period, provided that the Escrow Agent has received no Exercise Notice during such period unless such Exercise Notices were honored in full, the Escrow Agent shall return the balance of the Remaining Debentures not subject to an Exercise Notice to the Sellers.
(iv) It is expressly understood that the Escrow Agent acts hereunder as an accommodation to the Purchaser and the Sellers and as a depository only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of any instrument deposited with it, or for the form of execution of such instruments or for the identity, authority or right of any person executing or depositing the same or for the terms and conditions of any instrument pursuant to which the Escrow Agent or the parties may act.
(v) The Escrow Agent shall no have duties or responsibilities except those set forth in this Agreement and shall incur no liability, other than by its own gross negligence, willful misconduct or fraud, in acting upon any signature, notice, request, waiver, consent, receipt or other paper or document believed by the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant Escrow Agent to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”)be genuine, and the Escrow Agent may assume that any person purporting to give it any notice on behalf of any party in accordance with the provisions hereof has been duly authorized to do so. The Purchaser and the Sellers acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement and shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care beyond what Escrow Agent gives its own similar property. The Purchaser and the Sellers hereby jointly and severally agree to indemnify and save the Escrow Agent harmless from and against any and all loss, damage, claims, liabilities, judgments and other costs and expenses of every kind and nature which may be incurred by the Escrow Agent (iiiincluding attorneys' fees) an amount by reason of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”its acceptance of, and collectively with its performance under, this Agreement unless caused by the Indemnification Escrow Amountgross negligence, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account willful misconduct or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions fraud of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by . Absent the Escrow Agent's gross negligence, Parent willful misconduct or fraud, the Escrow Agent shall be automatically released from all responsibility and liability under this Agreement upon the Escrow Agent's distribution of the Escrow Amount and the Stockholder Representative (Purchased Preferred Shares and the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (Purchased Warrants in accordance with the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses provisions of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow this Agreement.
(vi) On This Agreement sets forth exclusively the Adjustment Payment Date, the then-remaining balance duties of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable Agent with respect to Parent pursuant to Section 2.7(b)) any and all matters pertinent thereto and no implied duties or obligations shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow read into this Agreement.
(vii) If applicableThe Sellers and the Company acknowledge that Escorw Agent represents the Purchaser on other legal matters and has represented the Purchaser in connection with this Agreement, and each the then-remaining balance Sellers and the Company expressly waive any actual or potential conflict of interest which may be caused by such representation or such dual roles of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow AgreementAgent.
(viii) When paid in accordance with The provisions of this Section 2.6(c)(iv), Parent 1(g) shall be deemed to have contributed on behalf survive any termination of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollthis Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Axion International Holdings, Inc.)
Escrow. (ia) Notwithstanding Escrow Agent will hold the provisions of Section 2.6(a), as security for certain ▇▇▇▇▇▇▇ Money Deposit in escrow in an interest-bearing account of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification type generally used by Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) Agent for the benefit holding of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon escrow funds until the earlier of (Ai) five (5) years following the Closing Date Closing, or (Bii) the final resolution and settlement termination of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released this Agreement in accordance with Section 7.16any right hereunder. The ▇▇▇▇▇▇▇ Money Deposit shall be non-refundable to Purchaser, subject to the terms and conditions except as otherwise set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv)herein, Parent and shall be deemed to have contributed credited against the Purchase Price at the Closing. All interest earned on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date ▇▇▇▇▇▇▇ Money Deposit shall be paid to the Companyparty entitled to the ▇▇▇▇▇▇▇ Money Deposit. In the event the Closing occurs, the ▇▇▇▇▇▇▇ Money Deposit will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the ▇▇▇▇▇▇▇ Money Deposit. In all other instances, Escrow Agent shall not release the ▇▇▇▇▇▇▇ Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the ▇▇▇▇▇▇▇ Money Deposit as follows: (i) if requested by Seller, then upon Seller’s written demand therefore stating that Purchaser defaulted in the performance of Purchaser’s obligations to close under this Agreement and the facts and circumstances forming the basis of such default and (ii) if requested by Purchaser, then upon Purchaser’s written demand therefore, stating that Seller defaulted in the performance of Seller’s obligations to close under this Agreement and the facts and circumstances forming the basis of such default; provided, that, in neither case shall Escrow Agent release the ▇▇▇▇▇▇▇ Money Deposit until five (5) Business Days following Escrow Agent’s delivery of such written demand to the non-requesting party; provided, further, that if during such five (5) Business Days period, the non-requesting party shall have delivered to Escrow Agent a written dispute to the release of the ▇▇▇▇▇▇▇ Money Deposit, Escrow Agent shall not release the ▇▇▇▇▇▇▇ Money Deposit unless it receives further written direction signed by Seller and Purchaser. If no written dispute is so delivered, Escrow Agent shall disburse the ▇▇▇▇▇▇▇ Money Deposit as directed. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is ▇▇-▇▇▇▇▇▇▇. Harsimus represents that its tax identification number, for purposes of reporting the interest earnings, is ▇▇-▇▇▇▇▇▇▇, and Columbia represents that its tax identification number, for purposes of reporting interest earnings, is ▇▇-▇▇▇▇▇▇▇.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the Company shall pay parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the applicable recipient event Escrow Agent receives written notice of a dispute between the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit parties with respect to the applicable Governmental Authority▇▇▇▇▇▇▇ Money Deposit (the “Escrowed Funds”), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) as soon as practicable continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (but ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in no event later than accordance with the Company’s next payroll date after the date advice of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollsuch counsel.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P)
Escrow. (i) Notwithstanding Prior to the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholdersclosing date, the Executing Option Holders and Non-Owner Participants set forth Shareholder shall deliver to an escrow agent, to be agreed upon by the parties, hereinafter called escrow agent a certificate evidencing ownership of an 80% equity interest in the Company duly indorsed. CFC shall deliver to the escrow agent 3,000,000 shares of its common stock as described in Section One of this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”)agreement. The Escrow Amount escrow shall be released subject to the Parties according to the following terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).conditions:
(ii1) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following On the Closing Date, the then-remaining balance escrow agent shall deliver the shares of CFC and Company's ownership interest as set forth and provided in Section One of this agreement.
(2) All fees and expenses of the Indemnification Escrow Amount, less the Documentation Escrow Amount, escrow agent shall be released borne equally by the parties.
(3) Additional shares received by the Shareholder with respect to shares held in escrow, as a result of stock dividends and stock splits shall be delivered to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders escrow agent and Non-Owner Participants, shall be subject to the terms and conditions of this agreement.
(4) The escrow agent shall hold the undistributed shares deposited hereunder until May 1, 2001, whereupon he shall release to the Shareholder the balance of shares remaining in escrow after adjustment as set forth in Section Seven of this agreement and payment to CFC of all of its indemnity claims, approved as hereinafter provided, except that in the Escrow Agreementevent a claim that may result in indemnification hereunder remains undetermined as of May 30, 2001, as adequate number of shares shall be retained in escrow to provide for payment of such claim.
(iv5) Thirty-six (36) months following In the Closing Dateevent of any claim by CFC for indemnification hereunder, CFC shall give written notice to the Shareholder thereof, and the parties shall attempt to reach agreement in respect thereto. If the parties fail to reach agreement within ten days after notice of a claim has been given, the then-remaining balance issue shall be submitted to arbitration in accordance with the rules and requirements of the Documentation Escrow Amount American Arbitration Association then obtaining. The decision of the arbitrator shall be released final and binding on all parties, and appropriate instructions in conformity therewith shall immediately be given by the arbitrator to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholdersescrow agent, the Executing Option Holders who is authorized and Non-Owner Participants, subject directed to the terms and conditions as set forth in the Escrow Agreementrely on such instructions.
(v6) Upon The Shareholder shall have the earlier right, at his own expense, to be represented by counsel of (A) five (5) years following his own choice in connection with the Closing Date or (B) defense of any claim which may be brought against Company in respect to which CFC may be entitled to indemnification under this agreement. In the final resolution and settlement event of all matters and Actions related any such claim, CFC shall give prompt written notice thereof to the Identified MattersShareholder. If, after having received such notice, the then-remaining balance Shareholder elects not to participate in the defense of the Identified Matters Escrow Amount such claim, they shall be released to bound by the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth result obtained by CFC in the Escrow Agreementdefense thereof.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Stock Purchase Agreement (China Net & Technologies Inc)
Escrow. (ia) Notwithstanding the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing StockholdersWithin [***] after REGENXBIO’s request, the Executing Option Holders and Non-Owner Participants set forth in this Agreement Parties and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable Escrow Agent will enter into an agreement pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (which the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively Materials will be deposited with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), Agent and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and REGENXBIO under certain conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”). REGENXBIO will pay the Escrow Agent’s fees arising under such Escrow Agreement. Promptly after execution of the Escrow Agreement, Clearside will, to the extent Controlled by Clearside, deposit copies of the complete design history file for the Clearside Device, including the device master record and all documents referenced within. For clarity, this includes but is not limited to copies of all design requirements, specifications, technical drawings, standard operating procedures, component lists, and supplier lists relating to Manufacture of the Clearside Device and any other written materials maintained by Clearside or its Affiliates that are necessary for or used in the Manufacture of the Clearside Device (the “Escrow Materials”). The deposit of the Escrow Materials with the Escrow Agent will not affect Clearside’s right, title or interest in or to the Escrow Materials.
(iib) An amount equal The Escrow Agreement will require the Escrow Agent to Five Million Dollars release the Escrow Materials to REGENXBIO in the event an Insolvency Proceeding is instituted by or against Clearside or in the event of an Alternative Manufacturer Election if Clearside does not fulfill its obligations under Section 5.4.2(b)(x), ($5,000,000y) and (z) (the any such event, “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation MattersRelease”); provided. In the event of an Escrow Release, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant REGENXBIO will be entitled to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share full use of the Escrow AccountMaterials as necessary or useful to Manufacture Clearside Devices in furtherance of REGENXBIO’s exercise of the Commercial License. Notwithstanding anything herein After Escrow Release, REGENXBIO will Certain information has been excluded from this agreement (indicated by “[***]”) because such information (i) is not material and (ii) would be competitively harmful if publicly disclosed. have the right to the contrary, any such amounts payable from use the Escrow Account Materials and any amounts payable from will have the Stockholder Representative Reserve right to or for Manufacture Clearside Devices within the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date scope of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrolllicense under Section 3.1.
Appears in 1 contract
Sources: Option and License Agreement (Clearside Biomedical, Inc.)
Escrow. (ia) Notwithstanding the provisions Section 2.2(a) hereof and Section 2.4(a) hereof, an aggregate of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth $5,000,000 in this Agreement and the other Transaction Documents, Parent cash shall retain be withheld from the Merger Consideration otherwise deliverable aggregate amount payable to Common Holders in respect of Common Shares pursuant to Section 2.6(a), (i2.2(a) an amount hereof and to Option Holders in respect of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable Options pursuant to Section 7.162.4(a) hereof. Parent instead shall, at the JV Buyout Effective Time, deliver such amount to the Escrow Agent in immediately available funds by wire transfer deposit pursuant to the Escrow Agreement. This amount initially deposited with the Escrow Agent is referred to herein as the “Indemnity Escrow Amount, the “Escrow Amount.”)
(b) Notwithstanding Section 2.2(a) and Section 2.4(a) hereof, and shall deposit such amounts at Closing into in addition to the cash amount specified in Section 2.5(a) hereof, an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount aggregate of $4,000,000 in cash shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated withheld from the Indemnification Escrow Amount aggregate amount payable to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount Common Holders in respect of indemnification claims made Common Shares pursuant to Article IX.
(iiiSection 2.2(a) Eighteen (18hereof and to Option Holders in respect of Options pursuant to Section 2.4(a) months following hereof. Parent instead shall, at the Closing DateEffective Time, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released deliver such amount to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject Escrow Agent in immediately available funds by wire transfer deposit pursuant to the terms and conditions as set forth in the Escrow Agreement. This amount initially deposited with the Escrow Agent is referred to herein as the “Special Escrow Amount.”
(ivc) Thirty-six (36) months following the Closing Date, the then-remaining balance The portion of the Documentation Indemnity Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Special Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Common Holder and each Non-Owner Participant, each such Person’s Pro Rata Share Option Holder shall be in proportion to the aggregate portion of the Escrow AccountCommon Equivalent Number attributable to such Common Holder or Option Holder, as applicable. Notwithstanding the foregoing or anything herein to the contrarycontrary contained herein, any distribution to the Common Holders and Option Holders pursuant to the Escrow Agreement shall be reduced by any amount payable to Vector and other expenses, including those of the Shareholder Representative, incurred in connection with such amounts payable distribution.
(d) The parties hereto acknowledge and agree that the Indemnity Escrow Amount and the Special Escrow Amount are owned by Parent for U.S. federal income tax purposes, until distributed pursuant to the terms hereof. Accordingly, any income earned by the Indemnity Escrow Amount and the Special Escrow Amount will be treated as income of Parent. In addition, the parties intend and hereby agree to treat a portion of any distributions from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Indemnity Escrow Account or Stockholder Representative Reserve, the Special Escrow Amount to Common Holders as applicable) through the Company’s payrolla payment of interest in accordance with Code §483.
Appears in 1 contract
Sources: Merger Agreement (Affymetrix Inc)
Escrow. 16.1 The Deposit shall be held in escrow by Escrow Agent, upon the following terms and conditions:
(i) Notwithstanding the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and Agent shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner ParticipantsDeposit, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”)an interest-bearing account.
(ii) An amount equal Subject to Five Million Dollars ($5,000,000) (Section 16.1(iii), Escrow Agent shall deliver to Company the “Documentation Escrow Amount”) Deposit at and upon the Closing, and any interest earned on such Deposit shall be allocated from credited to the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”)Investor Capital Contribution; provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.and
(iii) Eighteen If this Agreement is terminated in accordance with the terms hereof, Escrow Agent shall pay the Deposit to Company or Investor, as the case may be, in accordance with the provisions of this Agreement.
16.2 It is agreed that:
(18i) months following The duties of Escrow Agent are only as herein specifically provided, and, except for the provisions of Section 16.3 hereof, are purely ministerial in nature, and Escrow Agent shall incur no liability whatever except for its own willful misconduct or gross negligence;
(ii) Escrow Agent shall not be liable or responsible for the collection of the proceeds of any checks used to pay the Deposit;
(iii) In the performance of its duties hereunder, Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by either of the other parties hereto or their successors;
(iv) Escrow Agent may assume, so long as it is acting in good faith, that any person purporting to give any notice of instructions in accordance with the provisions hereof has been duly authorized to do so;
(v) Escrow Agent shall not be bound by any modification, cancellation or rescission of this Agreement unless in writing and signed by Escrow Agent, Company and Investor;
(vi) Except as otherwise provided in Section 16.3 hereof, the Company and the Investor shall jointly and severally reimburse and indemnify Escrow Agent for, and hold it harmless against, any and all loss, liability, costs or expenses in connection herewith, including attorneys’ fees and disbursements, incurred without willful misconduct or gross negligence on the part of Escrow Agent arising out of or in connection with its acceptance of, or the performance of its duties and obligations under, this Agreement, as well as the costs and expenses of defending against any claim or liability arising out of or relating to this Agreement;
(vii) Each of the Company, the Members and Investor hereby releases Escrow Agent from any act done or omitted to be done by Escrow Agent in good faith in the performance of its duties hereunder; and
(viii) Escrow Agent may resign upon ten (10) days written notice to the Company and Investor. If a successor Escrow Agent is not appointed by the Company and Investor within such ten (10) day period, Escrow Agent may petition a court of competent jurisdiction to name a successor
16.3 Escrow Agent is acting as a stakeholder only with respect to the Deposit. Escrow Agent, except in the event of the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in Section 16.1(ii) above, shall not deliver the Deposit except on seven (7) days’ prior written notice to the parties and only if neither party shall object within such seven (7) day period. If there is any dispute as to whether Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance Agent is obligated to deliver all or any portion of the Documentation Deposit or as to whom the Deposit is to be delivered, Escrow Amount Agent shall not be required to make any delivery, but in such event Escrow Agent may hold the same until receipt by Escrow Agent of an authorization in writing, signed by all of the parties having any interest in such dispute, directing the disposition of the Deposit or in the absence of such authorization Escrow Agent may hold the Deposit until the final determination of the rights of the parties in an appropriate proceeding. If such written authorization is not given or proceedings for such determination are not begun within thirty (30) days after the date Escrow Agent shall have received written notice of such dispute, and thereafter diligently continued, Escrow Agent may, but is not required to, bring an appropriate action or proceeding for leave to deposit the Deposit in court pending such determination. Escrow Agent shall be released reimbursed for all costs and expenses of such action or proceeding including, without limitation, reasonable attorneys’ fees and disbursements, by the party determined not to be entitled to the Stockholder Representative (Deposit or its designee) for if the benefit Deposit is split between the parties hereto, such costs of Escrow Agent shall be split, pro rata, between Company and Investor, in inverse proportion to the amount of the Executing StockholdersDeposit received by each. Upon making delivery of the Deposit in the manner provided in this Agreement, Escrow Agent shall have no further obligation or liability hereunder
16.4 Escrow Agent has executed this Agreement solely to confirm that Escrow Agent has received the Executing Option Holders and Non-Owner ParticipantsDeposit (if the Deposit is made by check, subject to collection) and will hold the terms and conditions as set forth Deposit in escrow, pursuant to the Escrow provisions of this Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Escrow. (a) If the Senior Adviser exercises any of his Accelerated Options during the Term and disposes of any of the shares of Common Stock of the Company (the “Shares”) acquired upon such exercise, the Senior Adviser will deposit the Net Proceeds (as defined below) into an escrow account (the “Escrow”) to be established by the Company with ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (or such other bank mutually acceptable to the parties) on terms consistent with the provisions of this Section 11. In addition, any Escrow Shares acquired upon exercise of an Accelerated Option by the Senior Adviser during the Term shall be deposited into the Escrow. The Escrow Shares (or the Net Proceeds thereof, if applicable) deposited into Escrow are assets of the Senior Adviser, not of the Company and the terms of the escrow agreement will provide that the assets in the Escrow will not be subject to the claims of the creditors of the Company and will be released only as provided herein. During the Term, the Senior Adviser shall not transfer any Escrow Shares acquired upon exercise of an Accelerated Option other than pursuant to an arms-length sale to an independent third party.
(b) To the extent that an Option is partly a Vested Option and partly an Accelerated Option, any exercise of the Option shall be deemed first to be the exercise of a Vested Option. Any disposition of Shares acquired upon exercise of an Accelerated Option shall be deemed first to be a disposition of Unrestricted Shares. Any Shares used to pay the exercise price and/or satisfy withholding taxes in connection with the exercise on an Accelerated Option will be Unrestricted Shares.
(c) Within 2 business days following the earlier of (i) Notwithstanding the provisions of Section 2.6(a), as security for certain expiration of the indemnification obligations of the Executing StockholdersTerm at December 31, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), 2016 or (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and Involuntary Termination or (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as any other termination of the Closing Date by and among Senior Adviser other than a termination described in the Escrow Agentfollowing sentence, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth all amounts in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall will be released paid to the Stockholder Representative (Senior Adviser, including interest on all amounts held in the Escrow. Within 2 business days following a termination by the Senior Adviser described in Section 10 or its designee) a termination by the Company for the benefit of the Executing StockholdersCause, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth all amounts in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall will be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled .
(less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authorityd) as soon as practicable (but in no event later than the Company’s next payroll date after the date For purposes of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.this Section 11,
Appears in 1 contract
Sources: Non Disclosure, Non Competition, Non Hiring, Non Solicitation and Severance Agreement (CIFC Corp.)
Escrow. (i) Notwithstanding At the provisions Effective Time $3,500,000 of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”)) and an amount equal to 100% of the aggregate Closing Merger Consideration attributable to Dissenting Shares (the “Special Escrow Amount”) shall be contributed to the Escrow Account. On the Closing Date, and Parent shall deposit such amounts at Closing into establish an interest-bearing account or accounts (the “Escrow Account”) with U.S. J▇ ▇▇▇▇▇▇ Chase Bank, N.A. National Association (the “Escrow Agent”). The , on or prior to the Effective Time for the deposit of the Escrow Amount shall be released and Special Escrow Amount pursuant to the Parties according to this Section 2.13 in accordance with the terms and conditions of an escrow agreement dated in substantially the form attached hereto as of Exhibit H to be entered into on the Closing Date by among Parent, the Representative and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative Agent (the “Escrow Agreement”).
(ii) An amount equal . All interest earned on the Escrow Account shall first be used to Five Million Dollars ($5,000,000) (the “Documentation pay any Escrow Amount”) Account fees incurred post-Closing and second shall be allocated from added to the Indemnification Escrow Amount Account and treated for Tax purposes as income of Parent. The Escrow Agent shall distribute five percent (5%) of the interest income earned on the cash in escrow to address Losses Parent within ten (10) days after the end of each calendar quarter for payment of Taxes on such income. The Escrow Account shall be in the name of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing StockholdersShareholders as Indemnifying Parties under this Agreement. The Special Escrow Amount, together with any interest or income earned thereon, shall be used to pay the Executing Option Holders and Non-Owner Participantsamount of any Indemnified Dissenting Shares Losses, subject with any remaining amounts to be distributed to the Shareholders in accordance with their respective Pro Rata Share and the terms and conditions as set forth in of the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation . The Escrow Amount together with any interest or income earned thereon, shall be released used to the Stockholder Representative pay (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (Ba) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that to which Parent is payable entitled pursuant to Parent this Section 2.13, Section 2.15(c), Section 7.1(g) and (to the extent not already paid out of the Adjustment Amount Difference pursuant to Section 2.7(b2.15(c)) Section 15.8, and (b) the amount of any Indemnified Losses for which any of the Shareholders as Indemnifying Parties are obligated to indemnify an Indemnified Party under ARTICLE XIII, including, without limitation, the amount of any Indemnified Dissenting Share Losses in excess of the Special Escrow Amount, with any remaining amounts to be distributed to the Shareholders in accordance with their respective Pro Rata Share and the terms of the Escrow Agreement. One-half of any fees incurred in the establishment, maintenance or termination of the Escrow Account shall be released to paid by each of Parent, on the Stockholder Representative (or its designee) for one hand, and the benefit Company on the other. The Escrow Amount and Special Escrow Amount shall be disbursed in accordance with the provisions of the Executing Stockholders, the Executing Option Holders ARTICLE XIII and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (SolarWinds, Inc.)
Escrow. (i) Notwithstanding Supplier shall, promptly after the provisions of Section 2.6(a)Effective Date, as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) deposit into escrow (the “Indemnification Escrow AmountEscrow”) the Source Code for any Software embedded in, or used in connection with the development of, the Products (including the back-end), in each case owned by Supplier or its Subsidiaries, along with any related documentation and materials (iiincluding Technical Manufacturing Information and Product Information) an amount of cash equal to One Million Two Hundred Thousand Dollars and any Software comprised in the ▇▇▇▇ IP ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amountcollectively, the “Escrow AmountMaterials”). Supplier will, from time to time, provide Customer with a list of all third-party Software embedded in the Escrow Materials and required to use the Escrow Materials. Supplier agrees, during the term of this Agreement, to deposit into such Escrows (on a quarterly basis and for every major new release or similar item, in each case within ten (10) days thereof) any updates to the Escrow Materials. The agreed escrow agreement for any Escrow Materials in the ▇▇▇▇ Catalog Products is set forth on Schedule 9.13 hereof. The Parties agree that the Escrow agreement for any Escrow Materials in the Verisure Developed Products will be entered into upon the completion of the first SOW entered into by the Parties and will have terms substantially similar to the agreement on Schedule 9.13. The Escrow agreements will be deemed “supplementary to” this Agreement for purposes of bankruptcy law. The conditions for release of Escrow shall deposit be limited to the occurrence of a Late Stability Triggering Event or, in respect of Verisure Developed Products, the occurrence of a Supply [***] = Certain Confidential Information Omitted 48 Triggering Event or the termination of this Agreement (other than a termination under Section 11.03(d); and provided, further, that Customer’s access to any ▇▇▇▇ IP in the ▇▇▇▇ ▇▇▇▇▇ Services applies only in respect of a Late Stability Triggering Event). Customer will pay for the reasonable and documented fees of the Escrow agent (reasonably acceptable to Customer) and for the expense of one employee solely dedicated to fulfilling Customer’s obligations under this Section 9.13 (provided, Supplier shall have received Customer’s prior written consent for any such amounts at Closing into an account fees and or accounts expenses) (collectively, the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow AgentCosts”). The Escrow Amount During the period in which Supplier is in material breach of its obligations under this Section 9.13 or the separate escrow agreement, Supplier shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the liable for any Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”)Costs.
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Escrow. (ia) Notwithstanding Simultaneously with the provisions execution hereof, the Buyer or Acquisition is depositing with the Escrow Agent a number of shares of Buyer Preferred Stock equal to 10% of the Merger Consideration, as described in Section 1.3 hereof, including any amounts to be deposited into escrow pursuant to the last sentence of Section 2.6(a1.6(a) hereof (collectively, the "Escrowed Shares"), as security for certain the purpose of satisfying the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants Stockholders set forth in Article VI of this Agreement Agreement. The Escrowed Shares shall be held by the Escrow Agent under and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a)the terms of an Escrow Agreement, in the form of Exhibit A, by and among the Buyer, the Escrow Agent, the Indemnification --------- Representative (ieach as defined herein) an amount and each of cash equal to Fifteen Million Dollars ($15,000,000) the Stockholders (the “Indemnification "Escrow Amount”Agreement"). The Escrowed Shares shall remain in the Escrow for one (1) year following the Effective Time in order to satisfy the Stockholders' indemnification obligations under Article VI hereof. During such one (1) year period, (ii) an amount of all cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount anddividends, if applicable pursuant any, paid with respect to Section 7.16, the JV Buyout Escrow Amount, Escrowed Shares shall be the “Escrow Amount”)property of, and shall deposit such amounts at Closing into an account be delivered to, the Stockholders, each in accordance with their respective ownership interests, and each of the Stockholders shall have the sole power to exercise all voting rights pertaining to their pro rata portion of Escrowed Shares. All shares issued in respect of the Escrowed Shares (including, without limitation, shares issued in connection with stock dividends, stock splits, recapitalizations, reorganizations or accounts (similar transactions affecting the “Escrow Account”Buyer Preferred Stock) with U.S. Bankshall, N.A. (upon issuance, be deposited in the “Escrow Agent”). The Escrow Amount shall be released to the Parties according Escrow, held subject to the terms and conditions of an escrow agreement dated the Escrow Agreement and treated for all purposes as Escrowed Shares.
(b) The adoption of this Agreement and the approval of the Closing Date Merger by and among the Stockholders shall constitute approval by the Stockholders of the Escrow Agent, Parent Agreement and the Stockholder Representative on behalf appointment of Centura Bank as the escrow agent (the "Escrow Agent") thereunder and of all of the Executing Stockholdersarrangements relating thereto, including, without limitation, the Executing Option Holders and Non-Owner Participants, placement in a reasonable form mutually agreed upon in good faith by escrow of the Escrow Agent, Parent Escrowed Shares and the Stockholder appointment of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Group, Inc., a New York corporation ("▇▇▇▇▇▇"), to serve as the Indemnification Representative (the “Escrow Agreement”).
(ii"Indemnification Representative") An amount equal to Five Million Dollars ($5,000,000) (act as the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance representative of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) Stockholders for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share purposes of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account Agreement and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollthis Agreement.
Appears in 1 contract
Sources: Merger Agreement (Sciquest Com Inc)
Escrow. (i) Notwithstanding anything herein to the provisions of Section 2.6(a)contrary, as security for certain of to the indemnification obligations of extent agreed among the Executing StockholdersCompany and the Arrangers, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) Term B Loans may be funded into escrow (the “Indemnification Escrow AmountFunding”), ) prior to the Acquisition Closing Date (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amountwhile in escrow, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow AccountTerm Loans”) with U.S. Bank, N.A. and the following terms shall apply to the Escrow Funding:
(the “Escrow Agent”). i) The Escrow Amount Company shall be released to the Parties according to the terms and conditions of an escrow agreement dated as borrower of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”)Term B Loans funded into escrow.
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) Term B Loans shall be allocated required to be repaid in full to the extent release from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation escrow does not occur on or prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IXMandatory Cancellation Date.
(iii) Eighteen Interest on the Term B Loans shall accrue while such Term B Loans are in escrow in accordance with the terms of this Agreement and the Term B Loans shall otherwise be governed by the terms set out for such Term B Loans in this Agreement, mutatis mutandis.
(18iv) months following The Dollar Term B Commitments shall be reduced dollar for dollar by the Closing gross principal amount of Dollar Term B Loans upon any funding thereof into escrow. The Euro Term B Commitments shall be reduced euro for euro by the gross principal amount of Euro Term B Loans upon any funding thereof into escrow
(v) Any upfront fees (or original issue discount) in respect of the Term B Loans shall apply as of the date the Term B Loans are funded into escrow; provided that while in escrow such Term B Loans shall be prepayable at the issue price (i.e. less any upfront fees (or original issue discount)) thereof.
(vi) The maturity date of the Term B Loans will be as set for in the proviso to the definition of Term B Loan Maturity Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) which for the benefit avoidance of doubt, will be 7.5 years from the Executing Stockholders, the Executing Option Holders and Non-Owner Participantsdate of such funding into escrow, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow this Agreement.
(vii) If applicable, Amortization payments on the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as Term B Loans set forth in Section 2.2.3(a) shall only apply upon the Escrow Agreementrelease of the Term B Loans from escrow.
(viii) When paid Substantially simultaneous with the satisfaction or waiver of the conditions set forth in Section 4.3, the Term B Loans shall be released from escrow to the Company.
(ix) Interest in respect of the Incremental Term B Loans funded into escrow will not be required to be pre-funded (but for the avoidance of doubt the Term B Loans funded into escrow and interest, fees and other amounts owing in respect thereof shall constitute Obligations hereunder).
(x) The call-protection set forth in Section 2.6.3 will apply from the date the Term B Loans are funded into escrow and not the Acquisition Closing Date.
(xi) The proceeds of the Term B Loans will be placed into an escrow account or accounts pending release on the Acquisition Closing Date pursuant to an escrow agreement among the Company, the Administrative Agent and an escrow agent, in each case, in form and substance reasonably satisfactory to the Company and the Arrangers; provided that in any event the conditions for release of the proceeds from escrow shall not be more restrictive than the conditions set forth in Section 4.3 for the funding of the Term B Loans on the Acquisition Closing Date (it being understood that such agreement may require a certificate from the Company to the escrow agent confirming such release conditions have been met). The Lenders and Issuers hereby authorize the Administrative Agent to enter into such escrow agreement.
(xii) While in escrow, the Indebtedness represented by the Term B Loans and the proceeds thereof shall not be included in calculating the financial covenants in Sections 6.22 and 6.23 or any other financial ratios or incurrence tests hereunder and any applicable Indebtedness represented by the Term B Loans, any Liens on the escrow account and any proceeds therein and any Investments thereof shall be permitted under Article VI hereof. For the avoidance of doubt, to the extent any New Senior Unsecured Notes are funded into escrow (or funded subject to a limitation on use of proceeds prior to the Acquisition Closing Date reasonably satisfactory to the Arrangers and subject to a mandatory redemption requirement in the event the Acquisition is terminated prior to the Acquisition Closing Date or does not occur before a given date) prior to the Acquisition Closing Date as separately agreed between the Company and the Arrangers, the exclusions set forth in this clause (xii) shall also apply to the New Senior Unsecured Notes while the proceeds thereof remain in such escrow or remain subject to such use of proceeds limitations and mandatory redemption requirements.
(xiii) The only conditions to funding the Term B Loans into escrow shall be that (a) the Execution Date shall have occurred, (b) the applicable proceeds of the Term B Loans will substantially contemporaneously therewith be deposited into an escrow account or accounts subject to an escrow agreement as set forth in clause (xi) and (c) the Company has delivered of a borrowing notice in accordance with the procedures set forth in Section 2.6(c)(iv2.3 (or such other procedures reasonably acceptable to the Administrative Agent), Parent . The Administrative Agent will notify the Term B Lenders of such borrowing notice and each Term B Lender shall be deemed required to have contributed make the proceeds of their Term B Loans available to the Administrative Agent on behalf such Borrowing Date as set forth in Section 2.3.
(xiv) Each Lender and Issuer consents to the terms of each Executing Stockholder, each Executing Option Holder this Section 17.2 and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Accountagrees to fund its Term B Loans into escrow as set forth herein. Notwithstanding anything herein to the contrary, including Section 8.2, the Company and the Administrative Agent may make any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid changes to the Company, Loan Documents with only the consent of the Company and the Company shall pay Administrative Agent (and no other Lender or Issuer) to ensure this Agreement adequately reflects the applicable recipient nature of the amount to which he or she is entitled (less any applicable withholding taxesTerm B Loans while in escrow and adequately reflects such Term B Loans after release from escrow on the Acquisition Closing Date, which the Company shall remit to the applicable Governmental Authorityextent such amendments or modifications (y) as soon as practicable only relate to the Term B Facility or (but in no event later than x) are not materially adverse to the Company’s next payroll date after the date interests of the release from the Escrow Account or Stockholder Representative Reserveother Lenders hereunder, as applicable) through determined by the Company’s payrollAdministrative Agent in its sole discretion.
Appears in 1 contract
Sources: Credit Agreement (Diebold Inc)
Escrow. (i) Notwithstanding At the provisions of Section 2.6(a)Closing, as security for certain of the indemnification obligations of the Executing StockholdersParent, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction DocumentsSeller Representative, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing StockholdersSellers, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative Agent shall enter into an Escrow Agreement (the “Escrow Agreement”).
, substantially in the form of Exhibit B, pursuant to which the Working Capital Escrow Amount, the Indemnity Escrow Amount, the Generator Escrow Amount and the Severance Escrow Amount shall be deposited into separate escrow accounts with the Escrow Agent for the purpose of funding Sellers’ obligations pursuant to Section 2.9, Article VII and Section 5.12 hereof (ii) An amount equal such amounts held by the Escrow Agent pursuant to Five Million Dollars ($5,000,000) (the Escrow Agreement, the “Documentation Working Capital Escrow AmountFund”, the “Indemnity Escrow Fund”, the “Generator Escrow Fund” and the “Severance Escrow Fund” respectively). Pursuant to the terms of the Escrow Agreement, (w) all funds remaining in the Working Capital Escrow Fund, including all undistributed earnings thereon, shall be allocated from released to the Indemnification Escrow Amount Payment Agent for distribution to address Losses the Sellers in accordance with Section 2.11 upon resolution of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Adjustment Amount in respect accordance with Section 2.10, (x) all funds remaining in the Indemnity Escrow Fund, including all undistributed earnings thereon but net of indemnification claims made pursuant reserves for pending claims, will be released to Article IX.
the Payment Agent for distribution to the Sellers in accordance with Section 2.11 twelve (iii) Eighteen (1812) months following the Closing Date; and as each pending claim is resolved, the then-remaining balance excess of the Indemnification corresponding reserve (together with any undistributed earnings thereon) over the amount allowed will be released to the Payment Agent for distribution to the Sellers in accordance with Section 2.11, (y) all funds remaining in the Generator Escrow AmountFund, less the Documentation Escrow Amountincluding all undistributed earnings thereon, shall be released to the Stockholder Representative (or its designee) Payment Agent for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject distribution to the terms Sellers in accordance with Section 2.11 twelve (12) months following the Closing Date and conditions as set forth (z) all funds remaining in the Severance Escrow Agreement.
(iv) Thirty-Fund, including all undistributed earnings thereon, shall be released to the Payment Agent for distribution to the Sellers in accordance with Section 2.11 six (366) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (CyrusOne Inc.)
Escrow. (ia) Notwithstanding On the provisions Closing Date, the Buyer shall deliver to the Escrow Agent a certificate (issued in the name of the Escrow Agent or its nominee) representing the Escrow Shares issuable pursuant to Section 2.6(a), as security 1.5 for certain the purpose of securing the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants Indemnifying Stockholders set forth in Section 6.1(a), Section 6.1(b) and Section 7.2(a) of this Agreement. The Escrow Shares shall be held by the Escrow Agent under the Escrow Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a)the terms thereof. The Escrow Shares shall be held as a trust fund and shall not be subject to any lien, (i) an amount attachment, trustee process or any other judicial process of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount any creditor of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”)any party, and shall deposit such amounts at Closing into an account or accounts (be held and disbursed solely for the “Escrow Account”) purposes and in accordance with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(ivb) Thirty-six (36) months following On the Closing Date, the then-remaining balance Buyer shall deliver to the Escrow Agent the Escrow Cash for the purpose of securing the indemnification obligations of the Documentation Indemnifying Stockholders set forth in Section 7.2(a) of this Agreement. The Escrow Amount Cash shall be released to held by the Stockholder Representative (or its designee) for Escrow Agent under the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject Tax Escrow Agreement pursuant to the terms thereof. The Escrow Cash shall be held as a trust fund and conditions as set forth shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party, and shall be held and distributed solely for the purpose and in accordance with the terms of the Tax Escrow Agreement.
(vc) Upon The adoption of this Agreement and the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance approval of the Identified Matters Escrow Amount shall be released to Merger by the Stockholder Representative (or its designee) for the benefit stockholders of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) Company shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share constitute approval of the Escrow Account. Notwithstanding anything herein to Agreement and the contraryTax Escrow Agreement and of all of the arrangements relating thereto, any such amounts payable from including the placement of the Escrow Account Shares and any amounts payable from the Escrow Cash in escrow and the appointment of the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollRepresentatives.
Appears in 1 contract
Sources: Merger Agreement (Bottomline Technologies Inc /De/)
Escrow. (i) Notwithstanding On the Closing Date, Buyer will deposit the Escrow Shares and the Escrow Cash, in each case, as adjusted pursuant to the provisions of Section 2.6(a1.6, into an escrow account with Mellon Bank, N.A., as escrow agent (the "ESCROW AGENT"), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) that certain Escrow Agreement (the “Indemnification Escrow Amount”), (ii"ESCROW AGREEMENT") an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by among Buyer, Company, the Stockholder Agent and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, Agent in a reasonable form to be mutually agreed upon in good faith by the Parties. The Escrow AgentAmount, Parent including all distributions thereon and proceeds thereof will secure the indemnification obligations of Company and the Stockholder Representative (Stockholders under ARTICLE VIII and any adjustments due to Buyer under Section 1.6. The Escrow Fund will be held and disbursed as provided in the “Escrow Agreement”).
(ii) An amount equal , which shall provide that except with respect to Five Million Dollars ($5,000,000) (escrow amounts relating to liabilities under Section 1.6, the “Documentation Escrow Amount”) escrow amounts shall be allocated from released on the Indemnification Escrow Amount to address Losses 18-month anniversary of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, except to the thenextent of outstanding claims as of such 18-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, month anniversary date which shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions handled as set forth in the Escrow Agreement.
. The Escrow Agreement will provide that Buyer shall have the option of either receiving a disbursement of Buyer Shares from the Escrow Fund or causing the Escrow Agent to sell and liquidate Buyer Shares (iv) Thirty-six (36) months following which, for the Closing Datepurposes of this Section 1.7, will be deemed to have been liquidated for the then-remaining balance Fair Market Value regardless of the Documentation Escrow Amount shall be released actual sale price) so that Buyer may receive a disbursement of the cash proceeds from such sale. The Parties will promptly give any necessary instructions to the Stockholder Representative (or its designee) for Escrow Agent to carry out the benefit purposes of the Executing Stockholders, the Executing Option Holders this Agreement and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (Memberworks Inc)
Escrow. (ia) Notwithstanding No later than fifteen (15) days following the provisions of Section 2.6(a)Escrow Expiration Date or the Special Escrow Expiration Date, as security for certain of the indemnification obligations of the Executing Stockholdersapplicable, the Executing Option Holders and Non-Owner Participants set forth in this Agreement Acquiror and the other Transaction Documents, Parent Representative shall retain from deliver a joint written instruction to the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), Escrow Agent (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amountin each instance, the “Escrow AmountRelease Notice”) providing for the release of an amount equal to the balance then on deposit in the Indemnity Escrow Fund or the Special Indemnity Escrow Fund, as applicable, in each case, minus the aggregate amount, if any, which any Acquiror Indemnified Party has timely claimed under (i) this Article X (excluding Section 10.02(g)), and shall deposit or Section 9.01(j)), prior to the Escrow Expiration Date, or (ii) Section 10.02(g), prior to the Special Escrow Expiration Date (to the extent such amounts at Closing into an account or accounts Claims, if any, remain unresolved) (the “Pending Escrow Account”) with U.S. Bank, N.A. (the “Escrow AgentClaims”). The Escrow Amount Release Notice shall provide that the Indemnity Escrow Fund or Special Indemnity Escrow Fund, as applicable, (excluding such portion thereof to satisfy any Pending Escrow Claims) be released as follows: (A) to the Parties according Paying Agent, such portion of the Indemnity Escrow Fund or Special Indemnity Escrow Fund, as applicable, payable to the terms Stockholders and conditions of an escrow agreement dated Warrantholder, determined in accordance with this Agreement and the Merger Payout Schedule (as updated pursuant to Section 1.15), and the Paying Agent shall promptly pay the Stockholders and Warrantholder such funds subject to and in accordance with Section 1.03, and (B) to the Surviving Corporation, such portion of the Closing Date by and among Indemnity Escrow Funds or Special Indemnity Escrow Funds, as applicable, payable to the Escrow AgentOptionholders, Parent determined in accordance with this Agreement and the Stockholder Representative on behalf of Merger Payout Schedule (as updated pursuant to Section 1.15), and Acquiror will cause the Executing Stockholders, Surviving Corporation to pay the Executing Option Holders Optionholders such funds subject to and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”accordance with Section 1.04(a).
(iib) An Any amount equal remaining in the Indemnity Escrow Fund or Special Indemnity Escrow Fund, as applicable, to Five Million Dollars ($5,000,000) (the “Documentation satisfy any Pending Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow AmountClaims, shall be released upon the final resolution of such Pending Escrow Claims in accordance with the joint written instructions delivered by Acquiror and the Representative to the Stockholder Escrow Agent. If any amount remains in the Indemnity Escrow Fund or Special Indemnity Escrow Fund, as applicable, following the resolution of all Pending Escrow Claims and the distribution to the Acquiror Indemnified Parties of any amounts payable to them in connection therewith, Acquiror and the Representative (or its designee) for shall execute and deliver a joint written instruction to the benefit Escrow Agent directing the payment of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions remaining balance as set forth in the Escrow AgreementSection 10.07(a).
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (Phreesia, Inc.)
Escrow. (i) Notwithstanding Simultaneously with the provisions execution and delivery of this Agreement by a Purchaser, such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing such Purchaser’s Subscription Amount to be paid to a non-interest bearing escrow account of L▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (the “Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being held in escrow by the Escrow Agent are referred to herein as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 2.6(a)2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, as security for certain from the date of its receipt of the indemnification obligations funds constituting the Escrow Amount until the soonest of:
(A) the termination of this Agreement in accordance with Section 6.18, in which case, if the Escrow Agent then holds any portion of the Executing StockholdersEscrow Amount, then: (1) in the event of a termination by the Company, the Executing Option Holders Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and Non-Owner Participants in the event of a termination by a Purchaser, the Escrow Agent shall return the portion of the Escrow Amount received from such Purchaser which it then holds, to such Purchaser, in accordance with written wire transfer instructions received from the Purchaser; and (2) if the Escrow Agent has not received written wire transfer instructions from any Purchaser before the 30th day after such termination date, then the Escrow Agent may, in its sole and absolute discretion, either (x) deposit that portion of the Escrow Amount to be returned to such Purchaser in a court of competent jurisdiction on written notice to such Purchaser, and the Escrow Agent shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Escrow Amount pending receipt of written wire transfer instructions from such Purchaser or an order from a court of competent jurisdiction; OR
(B) the Closing, receipt of written instructions from the Company and the Placement Agent that the Closing shall have been consummated, in which case, the Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (1) to the Placement Agent, the fees payable to such Placement Agent (which fees shall be set forth in such instructions), (2) to the Company’s Counsel, the fees payable to such Company Counsel, and (3) the balance of the aggregate purchase price to the Company.
(iii) The Company and the Purchasers acknowledge and agree for the benefit of the Escrow Agent (which shall be deemed to be a third party beneficiary of this Section 2.1(d)) as follows:
(A) The Escrow Agent: (i) is not responsible for the performance by the Company, the Purchasers or Placement Agent of this Agreement or any of the Transaction Documents or for determining or compelling compliance therewith; (ii) is only responsible for (A) holding the Escrow Amount in escrow pending receipt of written instructions from the Company and the Placement Agent directing the release of the Escrow Amount, and (B) disbursing the Escrow Amount in accordance with the written instructions from the Company or the Placement Agent (or the Purchaser in accordance with Section 2.1(d)(ii)(A)), each of the responsibilities of the Escrow Agent in clause (A) and (B) is ministerial in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent (collectively, the “Escrow Agent Duties”); (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with indemnification acceptable to it, in its sole discretion; (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper Person, and shall have no responsibility for making inquiry as to, or for determining, the genuineness, accuracy or validity thereof, or of the authority of the Person signing or presenting the same; and (v) may consult counsel satisfactory to it, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel. Documents and written materials referred to in this Section 2.1(d)(iii)(A) include, without limitation, e-mail and other electronic transmissions capable of being printed, whether or not they are in fact printed; and any such e-mail or other electronic transmission may be deemed and treated by the Escrow Agent as having been signed or presented by a Person if it bears, as sender, the Person’s e-mail address.
(B) The Escrow Agent shall not be liable to anyone for any action taken or omitted to be taken by it hereunder, except in the case of Escrow Agent’s gross negligence or willful misconduct in breach of the Escrow Agent Duties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGE OR LOSS (INCLUDING BUT NOT LIMITED TO LOST PROFITS) WHATSOEVER, EVEN IF THE ESCROW AGENT HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION.
(C) The Company hereby indemnifies and holds harmless the Escrow Agent from and against any and all loss, liability, cost, damage and expense, including, without limitation, reasonable counsel fees and expenses, which the Escrow Agent may suffer or incur by reason of any action, claim or proceeding brought against the Escrow Agent arising out of or relating to the performance of the Escrow Agent Duties, unless such action, claim or proceeding is exclusively the result of the willful misconduct, bad faith or gross negligence of the Escrow Agent.
(D) The Escrow Agent has acted as legal counsel to the Placement Agent in connection with this Agreement and the other Transaction Documents, Parent is merely acting as a stakeholder under this Agreement and is, therefore, hereby authorized to continue acting as legal counsel to the Placement Agent including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter. The Purchasers hereby expressly consent to permit the Escrow Agent to represent the Placement Agent in connection with all matters relating to this Agreement, including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter, and hereby waives any conflict of interest or appearance of conflict or impropriety with respect to such representation. Each of the Purchasers has consulted with its own counsel specifically about this Section 2.1(d) to the extent they deemed necessary, and has entered into this Agreement after being satisfied with such advice.
(E) The Escrow Agent shall retain have the right at any time to resign for any reason and be discharged of its duties as escrow agent hereunder (including without limitation the Escrow Agent Duties) by giving written notice of its resignation to the Company, the Placement Agent and the Purchasers at least ten (10) calendar days prior to the specified effective date of such resignation. All obligations of the Escrow Agent hereunder shall cease and terminate on the effective date of its resignation and its sole responsibility thereafter shall be to hold the Escrow Amount, for a period of ten (10) calendar days following the effective date of resignation, at which time,
(I) if a successor escrow agent shall have been appointed and have accepted such appointment in a writing to both the Company and the Purchasers, then upon written notice thereof given to each of the Purchasers, the Escrow Agent shall deliver the Escrow Amount to the successor escrow agent, and upon such delivery, the Escrow Agent shall have no further liability or obligation; or
(II) if a successor escrow agent shall not have been appointed, for any reason whatsoever, the Escrow Agent shall at its option in its sole discretion, either (A) deliver the Escrow Amount to a court of competent jurisdiction selected by the Escrow Agent and give written notice thereof to the Company, the Placement Agent and the Purchasers, or (B) continue to hold the Escrow Amount in escrow pending written direction from the Merger Consideration otherwise deliverable pursuant Company and the Placement Agent in form and formality satisfactory to Section 2.6(a)the Escrow Agent.
(F) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions with respect to the Escrow Amount or any portion thereunder which, in its sole discretion, are in conflict either with other instructions received by it or with any provision of this Agreement, the Escrow Agent shall have the absolute right to suspend all further performance of its duties under this Agreement (i) an amount except for the safekeeping of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification such Escrow Amount”)) until such uncertainty or conflicting instructions have been resolved to the Escrow Agent’s sole satisfaction by final judgment of a court of competent jurisdiction, (ii) an amount joint written instructions from the Company, the Placement Agent and all of cash equal the Purchasers, or otherwise. In the event that any controversy arises between the Company and one or more of the Purchasers or any other party with respect to One Million Two Hundred Thousand Dollars ($1,200,000) (this Agreement or the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant Agent shall not be required to Section 7.16, determine the JV Buyout proper resolution of such controversy or the proper disposition of the Escrow Amount, the “Escrow Amount”), and shall have the absolute right, in its sole discretion, to deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to with the Parties according to the terms and conditions clerk of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith court selected by the Escrow AgentAgent and file a suit in interpleader in that court and obtain an order from that court requiring all parties involved to litigate in that court their respective claims arising out of or in connection with the Escrow Amount. Upon the deposit by the Escrow Agent of the Escrow Amount with the clerk of such court in accordance with this provision, Parent the Escrow Agent shall thereupon be relieved of all further obligations and the Stockholder Representative (the “Escrow Agreement”)released from all liability hereunder.
(iiG) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”The provisions of this Section 2.1(d) shall be allocated from the Indemnification Escrow Amount to address Losses survive any termination of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow this Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Securities Purchase Agreement (Wonder Auto Technology, Inc)
Escrow. (ia) Notwithstanding Each of ▇▇▇▇▇▇ ▇. ▇▇▇, Avi ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ Mania, ▇. ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (each an "Escrow Executive") hereby agrees as a condition and inducement to Parent's willingness to enter into this Agreement to enter into, prior to the provisions Appointment Time, an Escrow Agreement (the "Escrow Agreement") with Parent substantially in the form of Section 2.6(aExhibit C. The amount set forth under the column entitled "Total" next to each Escrow Executive's name on Exhibit F hereto, shall, with respect to each executive be referred to as the "Executive Escrow Total." Each Escrow Executive, the Company and Parent agree that the payments that would otherwise be owed to such executive pursuant to the terms of his employment agreement with Company upon consummation of the Offer shall be reduced by the amount of the Executive Escrow Total and that Parent shall, within two business days of the Appointment Time, deposit cash in such amount with American Stock Transfer and Trust Co. (or another institution selected by Parent with the reasonable consent of the Founders), as security for certain of escrow agent (the indemnification obligations of "Escrow Agent"). All such deposits pursuant to this Section 6.18 shall total $5,000,000 and (together with any interest earned thereon) shall constitute the Executing Stockholders, Escrow Fund and be governed by the Executing Option Holders and Non-Owner Participants terms set forth in this Agreement Section 6.18 and the other Transaction DocumentsEscrow Agreement (such arrangement, the "Escrow"). Parent shall retain from the Merger Consideration otherwise deliverable pursuant be solely responsible for all expenses and fees payable to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively Agent in connection with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”)Escrow.
(iib) An amount equal With respect to Five Million Dollars each date ($5,000,000each, a "Determination Date") set forth on Exhibit D (the “Documentation "Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(ivThreshold Schedule"), Parent shall certify in writing to each Escrow Executive as soon as reasonably practical following such date (and in no event more than 30 days thereafter) whether the applicable threshold test (each, a "Threshold Test") corresponding to such date on the Escrow Threshold Schedule has been satisfied. No earlier than such delivery to the Escrow Executives, Parent shall deliver to the Escrow Agent a certificate signed by Parent directing the Escrow Agent to deliver the applicable threshold amount (each, a "Threshold Amount") corresponding to such date on the Escrow Threshold Schedule, together with any interest earned thereon, to either (i) the Escrow Executives (to each Escrow Executive pro rata based on contributions to the Escrow Fund with respect to such executive for such Threshold Test as set forth on Exhibit F) if the applicable Threshold Test has been satisfied or (ii) Parent if the applicable Threshold Test has not been satisfied. The Escrow shall terminate when all disputes regarding any distributions from the Escrow Fund have been settled and all distributions under the Escrow have been made.
(c) Each of ▇▇▇▇▇▇ ▇. ▇▇▇, Avi Fox, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ Mania, ▇. ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ agrees, notwithstanding any agreement between such executive and Company (including each agreement set forth on Part 3.04 of the Company Disclosure Letter), that effective as of the Appointment Time, the maximum amount that Company will be deemed obligated to have contributed pay such executives in order to reimburse such executives for any federal, state, or local income tax or excise tax (including any interest or penalties imposed with respect to such taxes) by reason of any payment being made by or on behalf of each Executing StockholderCompany to such executives that is subject to a "golden parachute" excise tax under Section 4999 of the Code, shall be a total amount for all such executives collectively of $140,668.00 (the "Aggregate Excise Tax Gross-up Cap"). Notwithstanding the foregoing sentence, each Executing Option Holder Escrow Executive and each NonParent agrees that to the extent that Net Cash Available After Termination Related Payments (as defined on Exhibit F) exceeds $750,000 on the Determination Date on which Net Cash Available After Termination Related Payments is calculated, Parent shall pay, on behalf of Company, to the Escrow Executives, collectively, such excess as if the Escrow Executives had not agreed to the Aggregate Excise Tax Gross-Owner Participantup Cap, each such Person’s Pro Rata Share but only to the extent that the Escrow Executives have been required by a Taxing Authority within six months of the Escrow Account. Notwithstanding anything herein Appointment Time to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve pay a "golden parachute" excise tax referred to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollabove.
Appears in 1 contract
Sources: Merger Agreement (E Trade Group Inc)
Escrow. (ia) Notwithstanding The Deposit shall be held in escrow, until delivered as herein provided, by the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth Escrow Agent in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) interest bearing escrow account at or with Escrow Agent’s banking institution (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount parties acknowledge that the Deposit shall be released held by Escrow Agent at the Bank and further acknowledge that the parties have no objections to the Parties according Deposit being held at the Bank. The Deposit shall be held and disbursed by Escrow Agent in the following manner:
(i) On the Closing Date, the Deposit shall be paid to Seller. Any interest accrued on the Deposit shall be paid to whichever party is entitled to the terms and conditions Deposit in accordance with the provisions of an escrow agreement dated as of this Agreement. Any interest earned on the Closing Date by and among Deposit shall be credited against the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”)Purchase Price at Closing.
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) The Deposit shall be allocated paid to Seller upon receipt of written demand therefor, stating that either (x) this Agreement has been terminated pursuant to a provision hereof which states that Seller is entitled to the Deposit upon such termination, and certifying the basis of such termination, or (y) Purchaser has defaulted in performance of Purchaser's obligations under this Agreement and the facts and circumstances underlying such default or that Seller is otherwise entitled to the Deposit under the provisions of this Agreement; provided however, that Escrow Agent shall not honor said demand until at least ten (10) days after it has sent a copy of such demand to Purchaser, nor thereafter if Escrow Agent shall have received written notice of objection from Purchaser in accordance with the Indemnification Escrow Amount provisions of clause (b) of this Section 1.4; or
(iii) The Deposit shall be paid to address Losses Purchaser upon receipt of Parent Indemnified Parties written demand therefor, stating that result from either (x) this Agreement has been terminated pursuant to a Target Entity’s failure provision hereof which states that Purchaser is entitled to comply with Legal Requirements regarding patient medical record documentation prior the Deposit upon termination, and certifying the basis for such termination, or (y) Seller has defaulted in performance of Seller's obligations under this Agreement and the facts and circumstances underlying such default or that Purchaser is otherwise entitled to Closing (“Documentation Matters”)the Deposit under the provisions of this Agreement; provided, however, that nothing contained herein Escrow Agent shall prevent not honor such demand until at least ten (10) days after it has sent a Parent Indemnified Party’s recovery copy of such demand to Seller, nor thereafter if Escrow Agent shall have received written notice of objection from Seller in accordance with the Indemnification Escrow Amount in respect provisions of indemnification claims made pursuant to Article IXclause (b) of this Section 1.4.
(b) Upon receipt of written demand for the Deposit by Purchaser or Seller pursuant to clause (ii) or (iii) Eighteen (18) months following of Section 1.4(a), Escrow Agent shall promptly send a copy thereof to the Closing Date, other party. The other party shall have the then-remaining balance right to object to the delivery of the Indemnification Deposit by sending written notice of such objection to Escrow AmountAgent within ten (10) days after Escrow Agent delivers a copy of the written demand to the objecting party but not thereafter. Such notice shall set forth the basis for objecting to the delivery of the Deposit. Upon receipt of such notice, less Escrow Agent shall promptly send a copy thereof to the Documentation party who made the written demand.
(c) In the event of any dispute between the parties regarding the Deposit, Escrow AmountAgent, at its option, may disregard all instructions received and either (i) hold the Deposit until the dispute is mutually resolved and Escrow Agent is advised of this fact in writing by both Seller and Purchaser, or Escrow Agent is otherwise instructed by a final unappealable judgment of a court of competent jurisdiction, or (ii) deposit the Deposit into a court of competent jurisdiction (whereupon Escrow Agent shall be released to the Stockholder Representative (or its designee) for the benefit and relieved of the Executing Stockholders, the Executing Option Holders any and Non-Owner Participants, subject to the terms all liability and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders obligations hereunder from and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of such deposit).
(d) In the release event Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive conflicting instructions, claims or demands from the parties hereto, or instructions which conflict with any of the provisions of this Agreement, Escrow Account Agent shall be entitled (but not obligated) to refrain from taking any action other than to keep safely the Deposit until Escrow Agent shall be instructed otherwise in writing signed by both Seller and Purchaser, or Stockholder Representative Reserveby final judgment of a court of competent jurisdiction.
(e) Escrow Agent may rely upon, as applicableand shall be protected in acting or refraining from acting upon, any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties, provided that any modification of this Section 1.4 shall be signed by Escrow Agent, Purchaser and Seller.
(f) through Seller and Purchaser shall jointly and severally hold Escrow Agent harmless against any loss, damage, liability or expense incurred by Escrow Agent not caused by its willful misconduct or gross negligence, arising out of or in connection with its entering into this Agreement and the Companycarrying out of its duties hereunder, or any dispute hereunder, including the costs and expenses of defending itself against any claim of liability or participating in any legal proceeding. In the event of any dispute with respect to the duties of Escrow Agent, Escrow Agent may consult with counsel of its choice, and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel.
(g) Escrow Agent may resign at will and be discharged from its duties or obligations hereunder by giving notice in writing of such resignation specifying a date when such resignation shall take effect; provided, however, that (i) prior to such resignation a substitute escrow agent is approved in writing by Seller and Purchaser, which approval shall not be unreasonably withheld or delayed, or (ii) Escrow Agent shall deposit the Deposit with a court of competent jurisdiction. After such resignation, Escrow Agent shall have no further duties or liability hereunder.
(h) Purchaser and Seller, together, shall have the right to terminate the appointment of Escrow Agent hereunder by giving to it notice of such termination, specifying the date upon which such termination shall take effect and designating a replacement escrow agent, who shall sign a counterpart of this Agreement. Upon demand of such successor escrow agent, the Deposit shall be turned over and delivered to such successor escrow agent, who shall thereupon be bound by all of the provisions hereof.
(i) Escrow Agent’s payrollagreements and obligations hereunder shall terminate and Escrow Agent shall be discharged from further duties and obligations hereunder upon final payment of the Deposit, and all interest accrued thereon, in accordance with the terms of this Agreement.
Appears in 1 contract
Escrow. (ia) Notwithstanding $1,000,000 of the provisions of Section 2.6(aCash Merger Consideration (the “Escrow Amount”) shall be deposited with Deutsche Bank National Trust Company, as escrow agent (the “Escrow Agent“), as security to constitute a collateral fund (the “Escrow Fund“) for certain purposes of securing the indemnification obligations of the Executing Stockholders, former holders of the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts Target Series C Preference Shares (the “Escrow AccountShareholders”) with U.S. Bankunder Article VIII of this Agreement. Notwithstanding anything to the contrary in this Agreement, N.A. recourse against the Working Capital Escrow Fund (solely in relation to Section 1.7 hereof) and the “Escrow Agent”)Fund (solely in relation to Section 1.7 hereof to the extent the Acquiror Excess Payment, if any, exceeds $100,000 and Article VIII hereof, subject to the limitations set forth in Section 8.4 hereof) shall constitute the sole and exclusive remedy of any Acquiror Indemnified Party (as defined in Article VIII) under this Agreement, except as otherwise set forth in Section 9.6(a) hereof. The Escrow Amount shall be released held in escrow pursuant to the Parties according to the terms and conditions of an escrow agreement dated in substantially the form attached hereto as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, Exhibit D or in a reasonable such form as otherwise mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative parties (the “Escrow Agreement”)) to be executed by Acquiror, Target, the Shareholders Representative and the Escrow Agent at or prior to Closing.
(iib) An amount equal Subject to Five Million Dollars ($5,000,000) the last sentence of this Section 1.12(b), the Escrow Amount plus the interest and any earnings accrued on the Escrow Amount less any amounts released earlier pursuant to this Agreement or the Escrow Agreement, will be released by the Escrow Agent on the date that is 24 months after the Closing Date (the “Documentation Escrow AmountTermination Date”) to the Escrow Shareholders. Notwithstanding the foregoing, to the extent that any then pending and unresolved claims for indemnification under Section 8.2 exist, that portion of the Escrow Amount necessary to satisfy such claims shall be allocated from retained by the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification Agent until such claims made pursuant to Article IXare finally resolved.
(iiic) Eighteen (18) months following Claims against the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, Fund shall be released to resolved between the Stockholder Indemnified Parties and the Shareholders Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreementmanner provided in Article VIII hereof.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (Microtune Inc)
Escrow. (i) Notwithstanding the provisions of Section 2.6(a)2.02, as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable shall be withheld from the Aggregate ▇▇▇▇ ▇▇▇▇ Merger Consideration payable to the Iris Minority Holders in respect of their Iris Capital Stock pursuant to Section 7.162.02 and the Iris Option Payment Amount payable to the holders of Iris Stock Options pursuant to Section 2.05(b). Pursuant to an escrow agreement to be entered into on the Closing Date by and among Parent, the JV Buyout Escrow AmountIris Stockholder Representative and U.S. Bank National Association or another financial institution that is reasonably acceptable to Parent and the Iris Stockholder Representative, the “Escrow Amount”)as escrow agent (including any successor in such capacity, and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable the form mutually agreed upon in good faith attached hereto as Exhibit C, subject to any administrative changes as may be required by the Escrow Agent, Parent and the Stockholder Representative Agent (the “Escrow Agreement”), Parent and the Iris Stockholder Representative shall appoint the Escrow Agent to hold and disburse the Escrow Funds as provided below. As promptly as practicable after the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Escrow Agent the Escrow Amount (together with any interest or other earnings thereon, the “Escrow Funds”) by wire transfer of immediately available funds. The Escrow Funds shall be held by the Escrow Agent in segregated accounts to serve as a source of payment of (x) any obligation of the Iris Minority Holders under Section 2.06(d) and (y) any indemnification obligation of the Iris Minority Holders set forth in Section 9.02. Parent and the Iris Stockholder Representative shall instruct the Escrow Agent to disburse the Escrow Funds as follows:
(i) Promptly following the determination of the Final Working Capital and the satisfaction of any payment obligations under 2.06(d) (the "Working Capital Release Date"), Parent and the Iris Stockholder Representative shall direct the Escrow Agent to release to the Exchange Agent (for further distribution to the Iris Minority Holders) a portion of the Escrow Fund equal to the excess, if any, of the Working Capital Escrow Amount over the amount, if any, distributed or disbursed by the Escrow Agent in satisfaction of the obligations of the Iris Minority Holders under Section 2.06(d).
(ii) An amount equal to Five Million Dollars ($5,000,000) (On the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses twelve month anniversary of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution "Final Release Date"), Parent and settlement of all matters and Actions related the Iris Stockholder Representative shall direct the Escrow Agent to release to the Identified Matters, Exchange Agent (for further distribution to the then-remaining balance Iris Minority Holders) a portion of the Identified Matters Escrow Amount shall be released Fund equal to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amountexcess, if any, that is payable to of the remaining amount of the Escrow Fund over the sum of (a) all amounts theretofore distributed or disbursed by the Escrow Agent (including any amounts distributed or disbursed by the Escrow Agent in satisfaction of the obligations of the Iris Minority Holders under Section 2.06(d)), and (b) the aggregate amount of Losses specified in any then unresolved good faith Claims made by Parent pursuant to Section 2.7(b)) shall be released to 9.02. To the Stockholder Representative (or its designee) for extent that, on the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contraryFinal Release Date, any such amounts payable amount has been reserved and withheld from distribution from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit Fund on such date on account of an Executing Stockholderunresolved claim for indemnification and, Executing Option Holder or Non-Owner Participant who subsequent to such Final Release Date, such Claim is employed by a Target Entity prior resolved, the parties shall immediately direct the Escrow Agent to or following release (A) to Parent the Closing Date shall be paid amount of Losses, if any, due in respect of such Claim as finally determined, and (B) to the CompanyExchange Agent (for further distribution to the Iris Minority Holders) an amount equal to the excess, and the Company shall pay the applicable recipient if any, of the amount to which he or she is entitled (less any applicable withholding taxestheretofore reserved and withheld from distribution in respect of such Claim over the payment, which the Company shall remit if any, made pursuant to the applicable Governmental Authority) as soon as practicable foregoing clause (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollA).
Appears in 1 contract
Escrow. (i) Notwithstanding To secure the provisions of working capital, indemnification, environmental and tax obligations under Section 2.6(a)2.7 and Articles 7 and 8, as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain Buyer will withhold from the Merger Consideration otherwise deliverable pursuant Estimated Purchase Price and will deliver to Section 2.6(a)the Escrow Agent in accordance with the Escrow Agreement, (i) an amount the sum of cash equal to Fifteen Three Million One Hundred Twenty Five Thousand Dollars ($15,000,0003,125,000) (the “Indemnification Working Capital Escrow AmountDeposit”), (ii) an amount the sum of cash equal to One Two Million Two Five Hundred Thousand Dollars ($1,200,0002,500,000) or such lesser amount as may be determined in accordance with Section 2.10(b) below (the “Adjustment Environmental Remediation Escrow AmountDeposit”), and (iii) an amount the sum of cash equal to One Nine Million Three Hundred Seventy Five Thousand Dollars ($1,000,0009,375,000) (the “Identified Matters Indemnity Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow AgentDeposit”). The Escrow Agent shall hold and distribute the Working Capital Escrow Amount, the Environmental Remediation Escrow Amount, and the Indemnity Escrow Amount in accordance with the terms of the Escrow Agreement, which shall incorporate the following provisions:
(a) Buyer shall instruct the Escrow Agent to disburse to the Stockholders’ Representative the entire Working Capital Escrow Amount in accordance with Section 2.7 and the Escrow Agreement (after giving effect to the payment to the Buyer of all amounts thereof to which Buyer is then entitled) immediately upon determination of the Final Purchase Price in accordance with Section 2.7(a) or, if later, on the 180th day following the Closing Date.
(b) If the Phase II Report shall have been received prior to Closing and the Phase II Report shall not recommend any Remedial Action, then there shall be released no Environmental Remediation Escrow Deposit. If the Phase II Report shall have been received prior to Closing and it recommends Remedial Action, then the amount of the Environmental Remediation Escrow Deposit shall be 150% of the amount of Environmental Losses reasonably estimated by Buyer (but not more than Two Million Five Hundred Thousand Dollars ($2,500,000)). If the Phase II Report is not received prior to Closing, then the Environmental Remediation Escrow Deposit shall be Two Million Five Hundred Thousand Dollars ($2,500,000). Upon receipt of the Phase II Report subsequent to Closing, the amount of the Environmental Remediation Escrow Deposit shall be reduced if appropriate to 150% of the amount of Environmental Losses reasonably estimated by Buyer and Buyer shall promptly instruct the Escrow Agent to disburse to the Parties according Stockholders’ Representative any excess of Two Million Five Hundred Thousand Dollars ($2,500,000) over the adjusted amount. If during the course of the Remedial Actions it becomes manifest to Buyer that the amount of the Environmental Remediation Escrow Deposit exceeds 150% of the remaining Environmental Losses reasonably estimated by Buyer, Buyer shall promptly instruct the Escrow Agent to disburse to the terms and conditions Stockholders’ Representative any excess of an escrow agreement dated as the amount of the Environmental Remediation Escrow Deposit over 150% of the remaining Environmental Losses reasonably estimated by Buyer. Upon completion of all Remedial Action, Buyer shall promptly instruct the Escrow Agent to disburse to the Stockholders’ Representative the entire remaining Environmental Remediation Escrow Amount in accordance with Section 7.8 (after giving effect to the payment to Buyer of all amounts thereof to which Buyer is then entitled).
(c) On the first anniversary of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Indemnity Escrow AgreementRelease Date”).
(ii) An amount equal , Buyer shall instruct the Escrow Agent to Five Million Dollars ($5,000,000) (disburse to the “Documentation Escrow Amount”) shall be allocated from Stockholders’ Representative the Indemnification entire Indemnity Escrow Amount in accordance with the Escrow Agreement (after giving effect to address Losses the payment to the Buyer of Parent Indemnified Parties that result from a Target Entity’s failure all amounts thereof to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”which Buyer is then entitled); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from if there are any asserted but unresolved claims for indemnity by Buyer as of the Indemnification Indemnity Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Release Date, the then-remaining balance full amount of the Indemnification Escrow Amount, less the Documentation Escrow Amount, such claims shall be released retained and held in the Indemnity Escrow in accordance with the Escrow Agreement until such claims are finally resolved, at which time such amounts will be disbursed to Buyer and the Stockholder Stockholders’ Representative (or its designee) for the ratable benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject Stockholders in accordance with their Proportionate Escrow Share) in such relative amounts as will give effect to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreementsuch claims.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (SAVVIS, Inc.)
Escrow. (i) Notwithstanding Upon Seller’s execution of this Agreement, Seller shall establish an escrow for the provisions of Section 2.6(a), as security for certain sale of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant Property to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) Purchaser (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow AccountEscrow”) with U.S. Bankat the office of Orange Coast Title Company, N.A. whose office is located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Escrow Agent”)) attention Ms. ▇▇▇▇▇ Genders, whose contact numbers are (a) telephone — ▇▇▇-▇▇▇-▇▇▇▇; (b) facsimile — ▇▇▇-▇▇▇-▇▇▇▇. The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among If the Escrow AgentAgent is unwilling or unable to perform, Parent and Seller shall designate another escrow agent. Upon (i) the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith Grant Deed being submitted for recordation by the Escrow AgentAgent and/or Title Company, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars the Purchase Price ($5,000,000including the Deposit) (being confirmed as having been received by Seller via wire transfer, the occurrence of said events shall be defined as being the “Documentation Close of Escrow”, and the Escrow Amount”) Agent and Title Company shall be allocated from perform all other tasks required of them as a result of the Indemnification Close of Escrow. Unless Seller shall otherwise expressly provide to the contrary through a subsequent writing which Seller shall deliver to both the Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing DateAgent and Purchaser, the then-remaining balance Close of Escrow shall occur on the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) Business Day that is five (5) years following days after the end of the Due Diligence Period (said date being defined as, the “Closing Deadline”). Should Escrow not Close by the Closing Date Deadline due to Purchaser’s default or inactions, then in that event Seller alone shall have the option to either (x) extend the Escrow for such period of time as is necessary to perfect the Close, or (By) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in terminate the Escrow and, so long as Seller is not then in default under this Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) a writing that Purchaser shall be released have theretofore delivered to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in both the Escrow Agreement.
(vii) If applicableAgent and Seller advising of such Seller’s default, in which event the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent Deposit shall be deemed to have contributed on behalf be Liquidated Damages in accordance with the provisions set out in Section 5 of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollthis Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (TNP Strategic Retail Trust, Inc.)
Escrow. (i) Notwithstanding Simultaneously with the provisions execution and delivery of this Agreement by a Purchaser, such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing such Purchaser’s Subscription Amount to be paid to a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (the “Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being held in escrow by the Escrow Agent are referred to herein as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 2.6(a)2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, as security for certain from the date of its receipt of the indemnification obligations funds constituting the Escrow Amount until the soonest of:
(A) in the case of the Executing Stockholderstermination of this Agreement in accordance with Section 6.17, in which case, if the Escrow Agent then holds any portion of the Escrow Amount, then: (1) in the event of a termination by the Company, the Executing Option Holders Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and Non-Owner Participants in the event of a termination by a Purchaser, the Escrow Agent shall return the portion of the Escrow Amount received from such Purchaser which it then holds, to such Purchaser, in accordance with written wire transfer instructions received from the Purchaser; and (2) if the Escrow Agent has not received written wire transfer instructions from any Purchaser before the 30th day after such termination date, then the Escrow Agent may, in its sole and absolute discretion, either (x) deposit that portion of the Escrow Amount to be returned to such Purchaser in a court of competent jurisdiction on written notice to such Purchaser, and the Escrow Agent shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Escrow Amount pending receipt of written wire transfer instructions from such Purchaser or an order from a court of competent jurisdiction; OR
(B) in the case of the Closing, receipt of written instructions from the Company and the Placement Agent that the Closing shall have been consummated, in which case, the Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (1) to the Placement Agent, the fees payable to such Placement Agent (which fees shall be set forth in such instructions), and (2) the balance of the aggregate purchase price to the Company.
(iii) The Company and the Purchasers acknowledge and agree for the benefit of the Escrow Agent (which shall be deemed to be a third party beneficiary of this Section 2.1(d)) as follows:
(A) The Escrow Agent: (i) is not responsible for the performance by the Company, the Purchasers or Placement Agent of this Agreement or any of the Transaction Documents or for determining or compelling compliance therewith; (ii) is only responsible for (A) holding the Escrow Amount in escrow pending receipt of written instructions from the Company and the Placement Agent directing the release of the Escrow Amount, and (B) disbursing the Escrow Amount in accordance with the written instructions from the Company and the Placement Agent, each of the responsibilities of the Escrow Agent in clause (A) and (B) is ministerial in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent (collectively, the “Escrow Agent Duties”); (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with indemnification acceptable to it, in its sole discretion; (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper Person, and shall have no responsibility for making inquiry as to, or for determining, the genuineness, accuracy or validity thereof, or of the authority of the Person signing or presenting the same; and (v) may consult counsel satisfactory to it, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel. Documents and written materials referred to in this Section 2.1(d)(iii)(A) include, without limitation, e-mail and other electronic transmissions capable of being printed, whether or not they are in fact printed; and any such e-mail or other electronic transmission may be deemed and treated by the Escrow Agent as having been signed or presented by a Person if it bears, as sender, the Person’s e-mail address.
(B) The Escrow Agent shall not be liable to anyone for any action taken or omitted to be taken by it hereunder, except in the case of Escrow Agent’s gross negligence or willful misconduct in breach of the Escrow Agent Duties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGE OR LOSS (INCLUDING BUT NOT LIMITED TO LOST PROFITS) WHATSOEVER, EVEN IF THE ESCROW AGENT HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION.
(C) The Company hereby indemnifies and holds harmless the Escrow Agent from and against any and all loss, liability, cost, damage and expense, including, without limitation, reasonable counsel fees and expenses, which the Escrow Agent may suffer or incur by reason of any action, claim or proceeding brought against the Escrow Agent arising out of or relating to the performance of the Escrow Agent Duties, except to the extent such action, claim or proceeding is exclusively the result of the willful misconduct, bad faith or gross negligence of the Escrow Agent.
(D) The Escrow Agent has acted as legal counsel to the Placement Agent in connection with this Agreement and the other Transaction Documents, Parent is merely acting as a stakeholder under this Agreement and is, therefore, hereby authorized to continue acting as legal counsel to the Placement Agent including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter. The Purchasers hereby expressly consents to permit the Escrow Agent to represent the Placement Agent in connection with all matters relating to this Agreement, including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter, and hereby waives any conflict of interest or appearance of conflict or impropriety with respect to such representation. Each of the Purchasers has consulted with its own counsel specifically about this Section 2.1(d) to the extent they deemed necessary, and has entered into this Agreement after being satisfied with such advice.
(E) The Escrow Agent shall retain have the right at any time to resign for any reason and be discharged of its duties as escrow agent hereunder (including without limitation the Escrow Agent Duties) by giving written notice of its resignation to the Company, the Placement Agent and the Purchasers at least ten (10) calendar days prior to the specified effective date of such resignation. All obligations of the Escrow Agent hereunder shall cease and terminate on the effective date of its resignation and its sole responsibility thereafter shall be to hold the Escrow Amount, for a period of ten (10) calendar days following the effective date of resignation, at which time,
(I) if a successor escrow agent shall have been appointed and have accepted such appointment in a writing to both the Company and the Purchasers, then upon written notice thereof given to each of the Purchasers, the Escrow Agent shall deliver the Escrow Amount to the successor escrow agent, and upon such delivery, the Escrow Agent shall have no further liability or obligation; or
(II) if a successor escrow agent shall not have been appointed, for any reason whatsoever, the Escrow Agent shall at its option in its sole discretion, either (A) deliver the Escrow Amount to a court of competent jurisdiction selected by the Escrow Agent and give written notice thereof to the Company, the Placement Agent and the Purchasers, or (B) continue to hold the Escrow Amount in escrow pending written direction from the Merger Consideration otherwise deliverable pursuant Company and the Placement Agent in form and formality satisfactory to Section 2.6(a)the Escrow Agent.
(F) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions with respect to the Escrow Amount or any portion thereunder which, in its sole discretion, are in conflict either with other instructions received by it or with any provision of this Agreement, the Escrow Agent shall have the absolute right to suspend all further performance of its duties under this Agreement (i) an amount except for the safekeeping of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification such Escrow Amount”)) until such uncertainty or conflicting instructions have been resolved to the Escrow Agent’s sole satisfaction by final judgment of a court of competent jurisdiction, (ii) an amount joint written instructions from the Company, the Placement Agent and all of cash equal the Purchasers, or otherwise. In the event that any controversy arises between the Company and one or more of the Purchasers or any other party with respect to One Million Two Hundred Thousand Dollars ($1,200,000) (this Agreement or the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant Agent shall not be required to Section 7.16, determine the JV Buyout proper resolution of such controversy or the proper disposition of the Escrow Amount, the “Escrow Amount”), and shall have the absolute right, in its sole discretion, to deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to with the Parties according to the terms and conditions clerk of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith court selected by the Escrow AgentAgent and file a suit in interpleader in that court and obtain an order from that court requiring all parties involved to litigate in that court their respective claims arising out of or in connection with the Escrow Amount. Upon the deposit by the Escrow Agent of the Escrow Amount with the clerk of such court in accordance with this provision, Parent the Escrow Agent shall thereupon be relieved of all further obligations and the Stockholder Representative (the “Escrow Agreement”)released from all liability hereunder.
(iiG) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”The provisions of this Section 2.1(d) shall be allocated from the Indemnification Escrow Amount to address Losses survive any termination of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow this Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Securities Purchase Agreement (Optimer Pharmaceuticals Inc)
Escrow. (ia) Notwithstanding Subject to the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants limitations set forth in this Article VIII, within three Business Days after a Buyer Indemnitee becomes entitled to payment of indemnification for any claim for indemnification under Section 8.1: (i) if there are funds remaining in the Escrow Account, Buyer and Seller shall execute and deliver a joint written instruction to the Escrow Agent to make such payment to the Buyer Indemnitee out of the Escrow Amount; and (ii) if the Escrow Amount has been fully reserved in respect of pending claims, exhausted or otherwise released in accordance with this Agreement and the other Transaction DocumentsEscrow Agreement, Parent shall retain from the Merger Consideration any Losses not otherwise deliverable satisfied pursuant to Section 2.6(a8.6(a)(i), (i) an amount shall be satisfied by payment of cash equal all sums due and owing from the Selling Parties to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount Buyer Indemnitee by wire transfer of cash equal immediately available funds to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts designated in writing by the Buyer Indemnitee.
(b) Except as otherwise provided in this Article VIII, payment for any Losses suffered by any Buyer Indemnitee or the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount Seller Parties pursuant to this Article VIII shall be released to made (i) when the Buyer Indemnitee and Seller (if the Indemnitee is a Buyer Indemnitee), or Buyer and the Seller Parties according to (if the terms Indemnitee is a Seller Party) resolve the related claim for indemnification and conditions agree on the amount of an escrow agreement dated as such Losses, or (ii) when the amount of Losses is finally adjudicated.
(c) On the date that is three Business Days after the 12-month anniversary of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow AgreementRelease Date”).
(ii) An amount equal , Buyer and Seller shall, by joint written instruction, direct the Escrow Agent to Five Million Dollars ($5,000,000) (release to Seller the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth amounts in the Escrow Agreement.
(iv) Thirty-six (36) months following Account minus the Closing aggregate amount of Losses that are the subject of unresolved claims made by Buyer Indemnitees pursuant to this Article VIII. To the extent that any amount has been reserved and withheld from distribution from the Escrow Account on the Release Date on account of an unresolved claim for indemnification and, subsequent to the Release Date, such claim is resolved, Buyer and Seller shall, within three Business Days thereafter, by joint written instruction, direct the then-remaining balance of the Documentation Escrow Amount shall be released Agent to release (i) to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (BBuyer Indemnitee(s) the final resolution and settlement amount of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amountLosses, if any, that is payable due in respect of such claim as finally resolved, and (ii) to Parent Seller an amount equal to the excess, if any, of the amount theretofore reserved and withheld from distribution in respect to such claim over the payment, if any, made pursuant to Section 2.7(bthe foregoing clause (i)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Asset Purchase Agreement (Miller Industries Inc /Tn/)
Escrow. (i) Notwithstanding the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification The Indemnity Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount Account shall be released used, in accordance with this Section 9.02, to pay Losses to the Parties according to the terms and conditions extent of an escrow agreement dated as of the Closing Date by and among the Escrow AgentLosses that are incurred or sustained by, Parent and the Stockholder Representative on behalf of the Executing Stockholdersor imposed upon, the Executing Option Holders and Non-Owner Participantsany Buyer Indemnitee based upon, arising out of, relating to, or in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow connection this Agreement”).
(ii) An Upon final determination of any indemnity obligation of Seller hereunder, each of Buyer and Seller shall deliver written notice to the Escrow Agent directing the Escrow Agent to disburse an aggregate amount equal to Five Million Dollars such indemnified amount to Buyer. Upon the 15 month anniversary hereof, Seller and Buyer shall deliver written notice to the Escrow Agent directing it to disburse to Seller an amount equal to ($5,000,000i) one-half of the Indemnity Escrow Amount minus (ii) any unresolved indemnification claims hereunder. Upon the 36 month anniversary hereof (the “Documentation Full Indemnification Period”), Seller and Buyer shall deliver written notice to the Escrow Amount”Agent directing it to disburse to Seller an amount equal to (i) shall be allocated from the Indemnification remaining balance of the Indemnity Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing minus (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of ii) any unresolved indemnification claims made pursuant hereunder. Buyer will promptly provide written notice to Article IXSeller during the Full Indemnification Period of any Claim.
(iii) Eighteen The Earn-Out Escrow Amount shall be used to satisfy any “Earn-out Payment” (18as defined in that certain Share Purchase Agreement, dated October 20, 2020, by and among Avtex Solutions International Inc., Aria Solutions Inc., Aria Solutions USA Inc. and the other parties thereto) months owing in accordance with the terms thereof following the Closing Date. Upon final determination and payment of any such Earn-out Payment by a Company Entity following the Closing Date, Seller and Buyer shall deliver written notice to the thenEscrow Agent directing it to (y) first, disburse to Seller an amount equal to (i) the Earn-remaining balance Out Escrow Amount minus (ii) the amount of any such Earn-out Payment (but not below zero), and (z) thereafter, disburse the remainder of the Indemnification Earn-Out Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amountAccount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released Buyer. Notwithstanding anything in this Agreement to the Stockholder Representative (or its designee) for contrary, in the benefit event that any such “Earn-out Payment” is determined and paid in cash by a Company Entity in full settlement of the Executing Stockholderscontingent obligations thereunder prior to the Closing, the Executing Option Holders and NonEarn-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Out Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent for purposes of this Agreement shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder be zero and each Non-Owner Participant, each no such Person’s Pro Rata Share of amount shall be deposited with the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollAgent.
Appears in 1 contract
Escrow. (i) Notwithstanding On the provisions Closing Date, Purchaser shall, on behalf of Section 2.6(a)the Equity Sellers, pay to JPMorgan Chase Bank, NA, as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement agent to Purchaser and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) Equity Sellers (the “Indemnification Escrow AmountAgent”), (ii) in immediately available funds, to the account designated by the Escrow Agent, an amount of cash equal to One Million Two Hundred Thousand Dollars $25,500,000 ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) in accordance with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms of this Agreement and conditions of an escrow agreement dated as of the Closing Date Escrow Agreement, which will be executed at the Closing, by and among Purchaser, the Seller Representative and the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative Agent (the “Escrow Agreement”).
. Any payment any Equity Seller is obligated to make (iisubject to the limitations and exceptions set forth in Section 8.4 and elsewhere in this Agreement) An amount equal to Five Million Dollars any Purchaser Indemnified Parties pursuant to this Article VIII ($5,000,000) (the “Documentation Escrow Amount”other than in respect of a Leakage, a Fundamental Representation or a breach of any provision of Section 6.6) shall be allocated paid first, to the extent there are sufficient funds in the Escrow Account, by release of funds to the Purchaser Indemnified Parties from the Indemnification Escrow Account by the Escrow Agent within five (5) Business Days after the date the Seller Representative and Purchaser jointly instruct the Escrow Agent to make such payment and shall accordingly reduce the Escrow Amount and, second, to address Losses the extent the Escrow Amount is insufficient to pay any remaining sums due, then such Equity Seller shall be required to pay (subject to the limitations and exceptions set forth in Section 8.4 and elsewhere in this Agreement) all of Parent such additional sums due and owing to the Purchaser Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing by wire transfer of immediately available funds within five (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from 5) Business Days after the Indemnification Escrow Amount in respect date of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following such notice and final determination of the sum due and owing. On the first anniversary of the Closing Date, the then-remaining balance Escrow Agent shall pay to the Paying Agent the Minimum Share Percentage of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released First Anniversary Release Amount for further payment to the Stockholder Representative holders of Covered Shares pro rata in accordance with their respective holdings of Covered Shares (or its designee) for the benefit amount so paid being referred to as the “Minimum Share Release Amount”). On the first anniversary of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount Seller Representative shall be released provide to the Stockholder Representative Escrow Agent a written instruction (or its designeethe “First Anniversary Release Instruction”) for directing the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject Escrow Agent to release an amount equal to the terms and conditions as set forth in First Anniversary Release Amount less the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Minimum Share Release Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.“
Appears in 1 contract
Escrow. (a) At the Effective Time, shares of Parent Common Stock with a value equal to the sum of (i) Notwithstanding the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders Escrow Consideration and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount the Expense Consideration, each share of cash Parent Common Stock being deemed to have a per share value equal to One Million Two Hundred Thousand Dollars the Applicable Closing Price ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), shall be withheld from the payment of the Total Preferred Merger Consideration and shall deposit such amounts at Closing into an account be delivered or accounts (the “Escrow Account”) with U.S. caused to be delivered by Parent to ▇▇▇▇▇ Fargo Bank, N.A. N.A., as escrow agent (the “Escrow Agent”). The Escrow Amount shall be released ) pursuant to the Parties according to provisions of the terms and conditions of an escrow agreement dated in the form attached as of the Closing Date Exhibit C hereto, subject to any amendments to such form requested by and among the Escrow Agent, Agent and mutually agreed to by Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
. The Escrow Agreement shall be entered into prior to or concurrently with the Effective Time, by and among Parent, the Representative, on behalf of the Indemnifying Securityholders, and the Escrow Agent, and shall (iii) An amount equal to Five Million Dollars ($5,000,000) provide Parent with recourse against the Escrow Consideration held in escrow by the Escrow Agent (the “Documentation Escrow AmountFunds”) shall be allocated from the Indemnification Escrow Amount with respect to address Losses of any and all Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims Claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participantsunder Section 14, subject to the terms and conditions as set forth in the Escrow Agreement and in such Section 14 of this Agreement and (ii) provide the Representative with recourse against the Expense Consideration to reimburse the Representative pursuant to Section 14.6. The Escrow Amount (or any portion thereof) shall be distributed to the Indemnifying Securityholders and the Representative, and Parent at the times, and upon the terms and conditions, set forth in the Escrow Agreement. The escrow described above shall commence on the Effective Time and terminate on the 12-month anniversary thereof (the “Expiration Date”) and the period between the Effective Time and the Expiration Date shall be referred to as the “Escrow Period”), provided, however, that the portion of the Escrow Funds, which, in the reasonable judgment of Parent, subject to the objection of the Representative and the subsequent resolution of the matter in the manner provided in Section 14.9, is necessary to satisfy any unsatisfied claims specified in any Officer’s Certificate theretofore delivered to the Escrow Agent and the Representative prior to termination of the Escrow Period with respect to Damages incurred or litigation pending prior to expiration of the Escrow Period, shall remain in the foregoing escrow until such claims have been finally resolved, or, if earlier, until released in accordance with Section 14.9 below, provided further that the Expense Consideration shall remain in the foregoing escrow pursuant to the terms of the Escrow Agreement. The terms and provisions of the Escrow Agreement and the transactions contemplated thereby are specific terms of the Merger, and the approval and adoption of this Agreement and approval of the Merger by the Indemnifying Securityholders shall constitute approval by such Indemnifying Securityholders, as specific terms of the Merger, and the irrevocable agreement of such Indemnifying Securityholders to be bound by and comply with, the Escrow Agreement and all of the arrangements and provisions of this Agreement relating thereto, including, without limitation, the deposit of the Escrow Amount into escrow, the indemnification obligations set forth in Section 14 hereof and the appointment and sole authority to act on behalf of the Indemnifying Securityholders of the Representative, as provided for herein and in the Escrow Agreement.
(ivb) Thirty-six (36) months following Parent Indemnifying Parties shall have no recourse to the Closing Date, Expense Consideration. The Expense Consideration shall be for the then-remaining balance exclusive use of the Documentation Escrow Amount shall be released Representative pursuant to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders Section 14.6 and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Escrow. (ia) Notwithstanding On the provisions of Section 2.6(a)Closing Date, as security for certain of Acquiror shall deposit the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively Amount with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released available to satisfy the indemnification obligations of the Selling Parties to the Parties according Acquiror Indemnified Persons as follows:
(i) under Section 9.1(a)(vii) with respect to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner ParticipantsIdentified Tax Issues, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).an amount up to $2,000,000;
(ii) An under Section 9.1(a)(viii) with respect to the Northwest Acquisition Earn-out, in an amount equal up to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.625,000;
(iii) Eighteen under Section 9.1(a)(ix) with respect to the Home Health Aid Timesheet Dispute, in an amount up to $225,000; and
(18iv) months following under Section 9.1(a)(x) with respect to the Closing Date▇▇▇▇▇▇ Litigation, the then-remaining balance of the Indemnification in an amount up to $250,000.
(b) The Escrow Amount, less the Documentation Escrow Amount, Amount shall be released held by Escrow Agent in trust and shall not be subject to the Stockholder Representative (any lien, attachment, trustee process or its designee) any other judicial process of any creditor of any Person, and shall be held and disbursed solely for the benefit of the Executing Stockholders, the Executing Option Holders purposes and Non-Owner Participants, subject to in accordance with the terms of this Agreement and conditions as set forth in the Escrow Agreement.
(c) The amounts identified in Sections 2.8(a)(i) through (iv) Thirty-six (36) months following as being held in escrow with respect to the Closing DateIdentified Tax Issues, the thenNorthwest Acquisition Earn-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholdersout, the Executing Option Holders Home Health Aid Timesheet Dispute and Non-Owner Participantsthe ▇▇▇▇▇▇ Litigation shall either be disbursed to Acquiror, subject to the terms provisions of Section 9 and conditions pursuant to valid indemnification claims under Sections 9.1(a)(vii) through (x) or disbursed to Selling Parties' Agent (for further disbursement by the Selling Parties' Agent to the Selling Parties) promptly following resolution of the respective matters described in Section 2.8(a)(i) through (iv). For purposes of determining whether such indemnification matters have been resolved, the Parties agree as set forth follows: (i) for the Identified Tax Issues, the Parties agree that resolution shall occur in stages based upon the processing and acceptance of the private letter requests filed, or to be filed, by Target and the acceptance of such requests by the IRS such that (a) for the Blackstone Group, LLC QSUB election matter, up to $800,000 shall be eligible for release upon acceptance by the IRS of the requests applicable to such matter, and (b) for the Nursing Resources Corporation 336(e) election matter, up to $1,200,000 shall be eligible for release upon acceptance by the IRS of the requests applicable to such matter; (ii) for the Northwest Acquisition Earn-out, the Parties agree that resolution shall occur when the 2015 financial reporting period for the applicable operating results is completed and the earn-out payment, if any is calculated, which is expected to be completed by March 2016; (iii) for the Home Health Aid Timesheet Dispute, the Parties anticipate that resolution shall occur when such investigation and any related criminal civil or investigations are completed; and (iv) for the ▇▇▇▇▇▇ Litigation, the Parties agree that resolution shall occur when the applicable appeals process is completed and no further appeals are filed and/or eligible to be filed, which is expected in approximately three (3) to nine (9) months from the Effective Time.
(d) Selling Parties shall be treated, and authorize the Escrow Agent to treat, the Selling parties as the owners of the Escrow Fund for income tax purposes and the Escrow Agent is authorized to report the amount of any and all earnings on IRS Form 1099 to Selling Parties in accordance with their respective Pro Rata Portion, and to issue any other Form 1099s to Selling Parties' Agent with respect to such earnings.
(e) The fees and expenses of the Escrow Agent shall be paid in equal shares by Acquiror and the Selling Parties. The Selling Parties' 50% share of the Escrow Agent's $3,500 acceptance fee, as provided in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following , shall be included on the Closing Date or (B) Statement as a payment out of the final resolution and settlement cash portion of all matters and Actions related the Merger Consideration payable to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow AgreementSelling Parties.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (Almost Family Inc)
Escrow. Notwithstanding any provision of this Agreement to the contrary, the Closing of the Transaction contemplated hereunder shall be completed in escrow, with ▇▇▇▇▇▇▇▇ ▇▇▇▇, Esq., acting as escrow agent (i) Notwithstanding the "ESCROW Agent"), and any funds delivered in escrow shall be held and disposed of by the Escrow Agent in accordance with the terms and provisions of Section 2.6(aa certain escrow agreement by and between the Company, ASAP Subsidiary, Buyer and Escrow Agent, in substantially the form attached hereto as EXHIBIT B (the "ESCROW AGREEMENT"), as security for certain . In furtherance of the indemnification obligations foregoing, the following shall apply:
(a) In lieu of delivering the Share Purchase Price to the Company as provided for in Section 1.3, Buyer shall, at or prior to Closing, deliver or cause to be delivered to Escrow Agent for deposit into escrow pursuant to the Escrow Agreement, the amount of $425,000 representing the Share Purchase Price.
(b) At such time as all of the Executing Stockholdersconditions precedent to Closing under Article VII hereof have been satisfied by the respective parties, and no party shall be in breach any term, warranty, representation, covenant or agreement applicable to them, and each party shall have made all deliveries required by each of them under this Agreement, the Executing Option Holders Company and Non-Owner Participants set forth Buyer shall provide written notice to Escrow Agent directing that the escrow be disposed of in this accordance with the Escrow Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount terms of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow this Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein the Escrow Agent shall prevent a Parent Indemnified Party’s recovery from retain $50,000 of the Indemnification Escrow Amount Share Purchase Price in respect escrow to satisfy any indemnification obligations of Yuan under this Agreement and any indemnification claims made pursuant to Article IX.
obligations of the ASAP Subsidiary and Yuan under the Indemnity Agreement (iii) Eighteen "Indemnity Escrow"). On the date six months (186) months following the Closing Date, to the then-remaining balance extent that the Indemnity Escrow has not been and is not the subject of an indemnification claim under this Agreement and the Indemnification Indemnity Agreement, the Indemnity Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amountASAP Subsidiary together with accrued interest thereon, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cyber Merchants Exchange Inc)
Escrow. (ia) Notwithstanding At the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing StockholdersClosing, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall Purchaser will deposit such amounts at Closing into an escrow account or accounts (the “Escrow Account”) established for such purpose with U.S. BankComputershare Trust Company, N.A. (the “Escrow Agent”). The Escrow Amount shall be released ) pursuant to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing StockholdersPurchaser, the Executing Option Holders Shareholder Representative and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and in substantially the Stockholder Representative form attached hereto as Exhibit 2.8(a) (the “Escrow Agreement”), (i) $15.0 million, consisting of the Stock Merger Consideration valued at the Purchaser Stock Value (the “Escrowed Shares”), by delivery of shares into a book position in the name of the Escrow Agent, and (ii) $1.0 million in cash by wire transfer to an account designated by the Escrow Agent (the “Escrowed Cash”). The Escrowed Shares will be held in the Escrow Account to act as a source of payment of the indemnification obligations of the Company Shareholders under Article VIII and the Escrowed Cash will be held in the Escrow Account as a source of payment for any Downward Post-Closing NWC Adjustment pursuant to Section 2.11(c).
(iib) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, The Escrowed Shares shall be released from the Escrow Account to the Stockholder Representative (or its designee) Paying Agent, for further distribution by the benefit of Paying Agent to the Executing StockholdersCompany Shareholders ratably based on their respective Pro Rata Shares in accordance with this Agreement. For all purposes under the Escrow Account, the Executing Option Holders and Non-Owner Participants, subject Escrowed Shares shall be valued at the Purchaser Stock Value. Notwithstanding anything to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Datecontrary herein, the then-remaining balance no fraction of the Documentation Escrow Amount an Escrowed Share shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit all releases of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date Escrowed Shares shall be paid rounded to the Company, and nearest whole Escrowed Share.
(c) Following the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date determination of the Final NWC pursuant to Section 2.11(a) and, if payable, the payment of the Downward Post-Closing NWC Adjustment pursuant to Section 2.11(c), the Escrow Agent shall release from the Escrow Account to the Paying Agent (for further distribution by the Paying Agent to the Company Shareholders, the holders of Company Options and the holders of Performance Units pursuant to Section 2.10(b)) any remaining portion of the Escrowed Cash. On the 15-month anniversary of the Closing Date (the “Escrow Period Expiration Date”), the Escrow Agent shall release from the Escrow Account to the Paying Agent (for further distribution by the Paying Agent to the Company Shareholders pursuant to Section 2.10(b)(iv)) any remaining portion of the Escrowed Shares minus Escrowed Shares equal in value to the sum of the aggregate amount of unsatisfied or Stockholder disputed claims for Losses specified in Indemnity Claim Notices delivered by the Purchaser to the Shareholder Representative Reserveon or prior to the Escrow Period Expiration Date (such aggregate amount of unsatisfied or disputed claims for Losses, the “Pending Claims Amount”). The Escrow Agent shall continue to hold the Pending Claims Amount corresponding to each claim for Losses until the final resolution of such claim, at which point, as applicableand when such claim is resolved, the Escrow Agent shall release shares of Purchaser Stock equal in value to the appropriate portion of the Pending Claims Amount to the Paying Agent (for further distribution by the Paying Agent to the Company Shareholders pursuant to Section 2.10(b)(iv)) through and/or to the Company’s payrollPurchaser, as the case may be, depending upon resolution of such claim.
(d) The Purchaser, the Company and the Shareholder Representative each agree to promptly take commercially reasonable actions (including executing and delivering joint written instructions to the Escrow Agent) requested by the other to effect releases of Escrowed Cash and Escrowed Shares from the Escrow Account, in each case in accordance with this Agreement and the Escrow Agreement.
Appears in 1 contract
Sources: Merger Agreement (On Assignment Inc)
Escrow. (ia) Notwithstanding At the provisions of Section 2.6(a)Closing, as security for certain a portion of the indemnification obligations Purchase Price equal to the aggregate of the Executing StockholdersPurchase Price Reduction Amount, the Executing Option Holders Environmental Indemnification Amount, the Operating Expense Liabilities Amount, the Known Liabilities Amount, and Non-Owner Participants any amounts for Closing Date Payments under the last sentence of paragraph 5(a) (collectively, the "Escrow Fund") shall each be paid by Racing into an escrow account (the "Account") at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇. The Account shall be entitled "Joint Escrow Account of ▇▇▇▇▇▇▇ Town Racing Limited Partnership and PNGI ▇▇▇▇▇▇▇ Town Gaming Limited Liability Company, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. joint Escrow Agents." The Account shall be a money market or similar interest bearing account as the Escrow Agents may in their discretion determine. The interest earned on the Escrow Fund shall become part of the Escrow Fund and shall be paid to Racing upon termination of the escrow, except that PCTG shall be paid interest on any amounts PCTG receives from the Purchase Price Reduction Amount, the Environmental Indemnification Amount and any sums awarded to PCTG from the Operating Expense Liabilities Amount.
(b) Optionor and PCTG hereby appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. as joint escrow agents (the "Escrow Agents") and the Escrow Agents by their respective signatures on the execution page of this Closing Agreement, accept such appointment, and agree to receive, deposit and deliver the Escrow Fund subject to the terms contained herein.
(c) The Escrow Agents' duties and responsibilities shall be limited to those expressly set forth in the escrow provisions of this Closing Agreement. The Escrow Agents shall have no responsibility or obligation of any kind in connection with this Closing Agreement and the Escrow Fund except to disburse such funds either: (I) in accordance with the joint instructions of Optionor and PCTG, or (ii) in accordance with the final determination of the Arbitrator (as defined below) or a court order enforcing the determination of the Arbitrator. The Escrow Agents shall not be required to deliver the Escrow Fund or any part thereof or take any action with respect to any matters that might arise in connection therewith, other Transaction Documentsthan to receive, Parent deposit and deliver the Escrow Fund as herein provided.
(d) The Escrow Agents shall retain not be charged with notice or knowledge of any fact or information not herein set out. The Escrow Agents shall not be required in any way to determine the validity, sufficiency, accuracy or genuineness, whether in form or in substance, of the Escrow Fund or of any instrument, document, certificate, statement or notice referred to in this Closing Agreement or contemplated hereby, or of any endorsement or lack of endorsement thereon, or of any description therein. It shall be sufficient if any writing purporting to be such instrument, document, certificate, statement or notice is delivered to the Escrow Agents and purports on its face to be correct in form and signed or otherwise executed by the party or parties required to sign or execute the same under this Closing Agreement. The Escrow Agents shall not be required in any way to determine the identity or authority of any person executing the same or the genuineness of any such signature.
(e) Should any controversy arise between or among Optionor and PCTG or any other person, firm or entity with respect to the escrow provisions of this Closing Agreement, the Escrow Fund, or any part thereof, or the right of any party or other person to receive the Escrow Fund or any part thereof, or should the escrow provisions of this Closing Agreement terminate, or if the Escrow Agents should be in doubt or disagreement as to what action to take, (I) the Escrow Agents shall have the right, but not the obligation, either to withhold delivery of the Escrow Fund or portion thereof until the controversy is resolved in writing to the satisfaction of the Escrow Agents, the conflicting demands are withdrawn, or the doubt is resolved in writing to the satisfaction of Escrow Agents, or (ii) either Escrow Agent may institute a ▇▇▇▇ of interpleader in any court of competent jurisdiction to determine the rights of the parties hereto. The right of either Escrow Agent to institute such a ▇▇▇▇ of interpleader shall not, however, be deemed to modify the manner in which the Escrow Agents are entitled to make disbursements of the Escrow Fund as herein set forth other than to tender the Escrow Fund into the registry of such court. Should a ▇▇▇▇ of interpleader be instituted, or should either Escrow Agent be threatened with litigation or become involved in litigation in any manner whatsoever on account of the escrow provisions of this Closing Agreement or the Escrow Fund, or any portion thereof, then, as between themselves and the Escrow Agents, Optionor and PCTG hereby bind and obligate themselves, their successors and assigns, to pay to the Escrow Agents the respective attorney's fees and any and all other disbursements, expenses, losses, costs and damages of each Escrow Agent in connection with or resulting from the Merger Consideration otherwise deliverable pursuant to Section 2.6(asuch threatened or actual litigation, as provided in subparagraphs (h), (i) an amount and (j) below.
(f) In the event of cash equal to Fifteen Million Dollars any disagreement or conflicting instructions resulting in adverse claims or demands being made upon the Escrow Agents in connection herewith, or in the event that the Escrow Agents ($15,000,000) (the “Indemnification Escrow Amount”or either of them), (ii) an amount of cash equal in good faith, are in doubt as to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”)what action should be taken hereunder, either may, at his option, refuse to comply with any claims or demands on him, or refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in any such event, the Escrow Agents shall not be or become liable in any way or to any party for their failure or refusal to act until all differences shall have been adjusted and all doubt resolved in writing to the satisfaction of the Escrow Agents.
(iiig) an amount Without in any way limiting any other provision of cash equal the escrow provisions of this Closing Agreement, it is expressly understood and agreed that Escrow Agent shall be under no duty or obligation to One Million Dollars ($1,000,000) (give any notice, or to do or to omit the “Identified Matters doing of any action or anything with respect to the Escrow Amount”Fund, except to receive, deposit and collectively deliver the Escrow Fund in accordance with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at escrow provisions of this Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”)Agreement. The Escrow Amount Agents shall not be liable for any error in judgment, any act or omission, any mistake of law or fact, or for anything either may do or refrain from doing in connection herewith, except for his own willful misconduct or gross negligence. All actions to be taken by the Escrow Agents hereunder shall be released taken only upon the agreement of both Escrow Agents, except for actions specifically stated herein which may be taken by one or either Escrow Agent.
(h) Optionor and PCTG jointly and severally hereby agree to indemnify the Parties according Escrow Agents against, and hold each harmless from, any and all losses, costs, damages, expenses, claims and attorney's fees, including but not limited to costs of investigation, suffered or incurred by any Escrow Agent in connection with or arising from or out of this Closing Agreement, except such acts or omissions as may result from the terms and conditions willful misconduct or gross negligence of an escrow agreement dated as such Escrow Agent.
(i) Each of the Closing Date Escrow Agents may consult with his counsel or other counsel satisfactory to him concerning any question relating to his duties or responsibilities hereunder or otherwise in connection herewith and shall not be liable for any action taken, suffered or omitted by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon Agent in good faith by upon the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses advice of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share counsel. All of the Escrow Account. Notwithstanding anything herein to the contrary, Agents' rights hereunder are cumulative of any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to other rights either may have by law or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollotherwise.
Appears in 1 contract
Escrow. (iA) Notwithstanding At the provisions Closing, pursuant to an Escrow Agreement to be entered into by the parties substantially in the form of Section 2.6(a)Exhibit 2.3, as security for certain a portion of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant as shall be equal to Section 2.6(aFIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), (ibased upon the valuation described in Section 3.1(a) an amount below, shall be delivered by Buyer, on behalf of cash equal the Seller, to Fifteen Million Dollars ($15,000,000) CoreStates Bank, N.A., as escrow agent (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”"Escrowee"). The Escrow Amount Deposit shall be released held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the Parties according post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal to the terms and conditions of an escrow agreement dated as of amount by which the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”)Merger Consideration is so reduced.
(iiII) An amount equal In the event that the Buyer becomes entitled to Five Million Dollars ($5,000,000) (indemnification pursuant to Section 12.2, the “Documentation Escrowee shall release to Buyer that portion of the Escrow Amount”) Deposit as shall be allocated from the Indemnification Escrow Amount equal in value to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IXsuch indemnification.
(iiiIII) Eighteen If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (181) months year following the Closing Date, the then-any remaining balance of the Indemnification Escrow Amount, Deposit (less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) any amounts offset for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent claims pursuant to Section 2.7(b2.3(a)(i) and (ii)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow AgreementSeller.
(viiIV) If applicableany claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, the then-then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining balance (after resolution of the JV Buyout Escrow Amount outstanding claim(s) and payment in respect thereof, if any is owing, shall be paid or made), shall be released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow AgreementSeller promptly after resolution of such claim(s).
(viiiV) When paid in accordance with Section 2.6(c)(iv), Parent shall The value of any IHS Stock to be deemed delivered to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable Buyer from the Escrow Account and any amounts payable from Deposit shall be calculated based upon the Stockholder Representative Reserve to or average closing NYSE price of such stock for the benefit thirty (30) business day period immediately preceding the date which is two (2) days before the date of an Executing Stockholdersuch delivery.
(B) The costs, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following fees and expenses of the Closing Date Escrowee shall be paid to borne equally by Buyer, on the Companyone hand, and the Company shall pay Seller, on the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollother hand.
Appears in 1 contract
Escrow. (ia) Notwithstanding The Escrow Amount will be deposited by Purchaser at Closing and held in an escrow account managed by the provisions of Section 2.6(a)Escrow Agent, as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (escrow agreement in the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts form attached hereto as Exhibit A (the “Escrow AccountAgreement”) with U.S. Bankto be executed and delivered by Sellers, N.A. (Purchaser and the “Escrow Agent”)Agent at Closing. The costs and fees to be charged by the Escrow Agent shall be shared equally between Purchaser and Sellers. The Escrow Amount shall be released available to the Parties according satisfy any indemnity claims made by, and determined in favor of, Purchaser pursuant to, and subject to the terms and conditions of an escrow agreement dated as of of, Section 5.4 and/or ARTICLE VIII.
(b) On the date that is twelve (12) months after the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow AgreementFirst Anniversary Release Date”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, Agent shall be released unconditionally release to the Stockholder Representative Direct Seller (or its designee) who shall disburse any amounts received for the benefit of the Executing StockholdersRelated Subsidiaries in the manner described in Section 1.5(c)(iii)) an amount equal to:
(i) If, the Executing Option Holders and Non-Owner Participants, subject prior to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing First Anniversary Release Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholdersthere has not been a Claim Final Resolution, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five fifty percent (550%) years following of the Escrow Amount deposited by Purchaser at Closing Date or on the Escrow Account, minus (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be any amounts previously released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in from the Escrow Agreement.
Account to Purchaser, minus (viC) On an amount (the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable “Pending Claim Amount”) equal to Parent pursuant any then pending and unresolved claims for indemnification under Section 5.4 and ARTICLE VIII for which notice has been provided to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released Sellers in accordance with Section 7.165.4 and/or ARTICLE VIII, subject as applicable; or
(ii) if, prior to the terms and conditions as set forth in First Anniversary Release Date, there has been a Claim Final Resolution, (A) the remainder of the Escrow AgreementAmount on the Escrow Account, minus (B) any Pending Claim Amount.
(viiic) When paid in accordance with Section 2.6(c)(iv)Following a final and non-appealable conclusion, Parent settlement or abandonment of the Identified Claim (a “Claim Final Resolution”) occurring on or after the First Anniversary Release Date, the Escrow Agent shall be deemed unconditionally release to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share Sellers an amount equal to (i) the remainder of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from Amount on the Escrow Account and Account, minus (ii) any amounts payable from Pending Claim Amount.
(d) To the Stockholder Representative Reserve to or for extent there is a Pending Claim Amount at the benefit time of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative ReserveAccount, as applicable) through such Pending Claim Amount shall be retained by the Company’s payrollEscrow Agent in accordance with the Escrow Agreement until Final Determination of the amount of Loss relating to the claims to which such amount relates (at which time such amount shall be disbursed in accordance with such Final Determination).
Appears in 1 contract
Sources: Membership Interest and Asset Purchase Agreement (Smith Micro Software, Inc.)
Escrow. 4.1 The Escrow Account shall be operated, and the Escrow Sum and any interest accruing on it (or any part of it) shall be applied, in accordance with this Clause 4.
4.2 If the Buyer makes a claim under this Agreement on or prior to the date which is twelve (12) months after the Completion Date (the Release Date) and such claim has been finally determined in favour of the Buyer in accordance with Clause 4.4(b) or 4.4(c):
(a) the Warrantors’ Representative and the Buyer shall instruct the Escrow Agent to transfer a sum equal to the lower of (i) Notwithstanding the provisions of Section 2.6(a), as security for certain amount of the indemnification obligations claim and (ii) the Escrow Sum or such part of that principal sum plus any accrued interest thereon being available in the Escrow Account (after taking into account payments required to be made out of the Executing Stockholders, Escrow Sum pursuant to this Clause 4) to the Executing Option Holders and Non-Owner Participants set forth Buyer’s Bank Account; and
(b) the balance (if any) of the Escrow Sum remaining in the Escrow Account after the transfer referred to in Clause 4.2(a) shall be retained in the Escrow Account in accordance with this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of substantially in the Closing Date by and among form attached to this Agreement in Schedule 8 (subject to finalisation with the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
4.3 On the Release Date, the Warrantors’ Representative and the Buyer shall instruct the Escrow Agent to transfer the Escrow Sum or such part of that principal sum plus any accrued interest thereon being available in the Escrow Account (after taking into account payments required to be made out of the Escrow Sum pursuant to this Clause 4) into such bank account(s) as notified in writing by the Warrantors’ Representative to the Escrow Agent (the Release Bank Accounts), unless a bona fide claim by the Buyer under this Agreement is outstanding on the Release Date. If such claim is then outstanding:
(a) a sum equal to the lower of (i) the amount of the claim (or all such claims, if more than one), and (ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation balance remaining on the Escrow Amount”) Account shall be allocated from retained out of the Indemnification Escrow Amount Sum and in the Escrow Account;
(b) the Warrantors’ Representative and the Buyer shall instruct the Escrow Agent to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure transfer the balance (if any) on the Escrow Account to comply with Legal Requirements regarding patient medical record documentation prior to Closing the Release Bank Accounts; and
(“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from c) any sum so retained in the Indemnification Escrow Amount Account after the Release Date in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, any such claim shall be released to the Stockholder Buyer’s Bank Account or to the Release Bank Accounts or, in part to the Buyer’s Bank Account with the balance to the Release Bank Accounts, as appropriate, as soon as practicable after that claim is finally determined in accordance with Clause 4.4.
4.4 For the purpose of this Clause 4, a claim shall be regarded as finally determined if:
(a) the claim is withdrawn by the Buyer in writing;
(b) the Warrantors’ Representative and the Buyer so agree in writing; or
(or its designeec) for the benefit a competent court has awarded judgment in respect of the Executing Stockholdersclaim and, where relevant, the Executing Option Holders and Non-Owner Participants, subject to period for lodging appeal has expired without an appeal having been lodged.
4.5 Any interest which accrues on the terms and conditions as set forth Escrow Sum or such part of that principal sum plus any accrued interest thereon being available in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount Account (after deducting the net amount, if any, that is payable taking into account payments required to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share made out of the Escrow Account. Notwithstanding anything herein Sum pursuant to this Clause 4) shall follow the contrary, any such amounts payable from the Escrow Account principal amount and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the CompanyRelease Bank Accounts or to the Buyer’s Bank Account (as the case may be) at the same time as payment of the corresponding principal amount.
4.6 The Warrantors’ Representative, acting on behalf of himself and all Warrantors, and the Company Buyer shall:
(a) on or before Completion execute an escrow agreement substantially in the form attached to this Agreement in Schedule 8 (subject to finalisation with the Escrow Agent) and procure the execution of such escrow agreement by the Escrow Agent; and
(b) after Completion promptly give or join in giving all such instructions as are necessary to procure the operation of the Escrow Account, and application of the Escrow Sum and any interest accruing on it (or any part of it), in accordance with the provisions of this Clause 4.
4.7 The Buyer shall pay bear 50% of the applicable recipient fees and expenses of the amount Escrow Agent and the Warrantors shall bear the other 50% of such fees and expenses.
4.8 Each Warrantor shall be entitled to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit that Warrantor’s Warranty Proportion of each sum released to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release Warrantors from the Escrow Account or Stockholder Representative Reserve, as applicable) through under this Clause 4 (rounded down to the Company’s payrollnearest euro).
Appears in 1 contract
Escrow. (ia) Notwithstanding the provisions There shall be deposited in escrow with Union Bank of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. BankCalifornia, N.A. (the “Escrow Agent”)) an amount equal to Two Million One Hundred Thousand Dollars ($2,100,000) (the “Escrow Deposit”) as part of the consideration for the Shares. The Escrow Amount Deposit shall be delivered by the Buyer to the Escrow Agent at the Closing and shall be held and delivered by the Escrow Agent in an account (the “Escrow Account”) in accordance with the terms and provisions of the Escrow Agreement. Any fees and expenses payable to the Escrow Agent pursuant to the Escrow Agreement shall be divided equally between the Buyer, on the one hand, and the Sellers, on the other hand.
(b) The Escrow Fund shall be released to the Parties according Seller Representative, and Buyer agrees to execute joint instructions, and take all other actions, necessary to cause any such release, as follows:
(i) first, upon determination of the Net Working Capital pursuant to Section 2.5 and payment of any Shortfall or excess amounts payable thereunder (the date of such payment being referred to herein as the “First Release Date”), an amount (the “First Release Amount”) equal to (x) $500,000 less (y) the sum of (A) the amount of any Shortfall paid to the terms Buyer pursuant to Section 2.5(e)(i)(A); (B) the aggregate dollar amount of any indemnification claims paid out of the Escrow Fund on or prior to the First Release Date; and conditions (C) the aggregate dollar amount of an escrow agreement dated any indemnification claims (as shown in the notices of such claims provided under the Escrow Agreement) pending as of the Closing Date First Release Date, by and among the Escrow Agent, Parent and the Stockholder Representative on behalf wire transfer of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith immediately available funds to an account designated by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”)Seller Representative; provided, however, that nothing contained herein there shall prevent a Parent Indemnified Party’s recovery be no release from the Indemnification Escrow Fund to the Seller Representative on the First Release Date if (1) the First Release Amount in is a negative number, or (2) any Buyer Indemnitee has given notice of a claim under the Escrow Agreement with respect to which it is not reasonably able to specify the amount of Losses and such claim is then pending;
(ii) second, on the first anniversary of the Closing Date (the “Second Release Date”), an amount (the “Second Release Amount”) equal to (x) $1,125,000 less (y) the sum of (A) the First Release Amount; (B) the aggregate dollar amount of any indemnification claims made pursuant paid out of the Escrow Fund on or prior to Article IX.the Second Release Date; and (C) the aggregate dollar amount of any indemnification claims (as shown in the notices of such claims provided under the Escrow Agreement) pending as of the Second Release Date, by wire transfer of immediately available funds to an account designated by the Seller Representative; provided, however, there shall be no release from the Escrow Fund to the Seller Representative on the Second Release Date if (1) the Second Release Amount is a negative number, or (2) any Buyer Indemnitee has given notice of a claim under the Escrow Agreement with respect to which it is not reasonably able to specify the amount of Losses and such claim is then pending; and
(iii) Eighteen third, on the date which is eighteen (18) months following after the Closing Date (the “Third Release Date”), an amount (the “Third Release Amount”) equal to (x) the remaining Escrow Fund, if any, less (y) the aggregate dollar amount of any indemnification claims (as shown in the notices of such claims provided under the Escrow Agreement) pending as of the Third Release Date, by wire transfer of immediately available funds to an account designated by the then-Seller Representative; provided, however, if any Buyer Indemnitee has given notice of a claim under the Escrow Agreement with respect to which it is not reasonably able to specify the amount of Losses and such claim is then pending, the Escrow Agent shall retain the remaining balance Escrow Fund until it receives joint written instructions of the Indemnification Escrow Amount, less Buyer and the Documentation Escrow Amount, shall be released to the Stockholder Seller Representative (or its designee) for the benefit a final non-appealable order of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions a court of competent jurisdiction as set forth provided in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in upon which the Escrow Agreement.
(v) Upon Agent shall pay the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amountFund, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Seller Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreementthis paragraph.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Escrow. (ia) Notwithstanding At the provisions Closing, Eight Hundred (800) shares of Section 2.6(athe Series H Preferred Stock otherwise issuable to McCormack at Closing (the "Escrow Shares") shall be registe▇▇▇ ▇▇ ▇he name of, and be deposited with an institution selected by Buyer with the reasonable consent of the Seller Representative, as escrow agent (the "Escrow Agent"), such deposit to constitute the escrow fund (the "Escrow Fund") and to be governed by the terms set forth herein and in the Escrow Agreement attached hereto as security for certain of Exhibit J. The Escrow Fund shall be available to compensate Buyer and Fonix pursuant to the indemnification obligations of the Executing Stockholders, the Executing Option Holders Sellers and Non-Owner Participants McCormack as set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”)8.2. The Escrow Amount Fund shall ▇▇ ▇▇▇ ▇nitial but not the exclusive recourse of the Buyer Indemnified Persons.
(b) While the Escrow Shares remain in the Escrow Agent's possession pursuant to this Agreement, McCormack will retain and will be released able to the Parties according to exercise all oth▇▇ ▇▇▇▇▇ents of ownership of said Escrow Shares which are not inconsistent with the terms and conditions of an escrow agreement dated as this Agreement.
(c) The Escrow Agent shall hold the Escrow Fund (or any then remaining portion thereof), subject to any earlier releases of any portion of the Closing Escrow Fund pursuant to Section 8.7(f) below, in escrow until that date which shall be the earlier of (i) the date on which the Escrow Agent receives instructions to terminate the escrow and distribute the Escrow Fund signed by each of Fonix, Buyer and McCormack, and (ii) the second anniversary of the date o▇ ▇▇▇▇ Agreement (the "Termination Date"), provided, however, that if such termination is pursuant to clause (ii) above, the Escrow Agent shall continue to hold and not release after the Termination Date by and among all or a portion of the Escrow Fund equal in stated value to the dollar amount of any claim or claims described in any Officer's Certificate (as defined in Section 8.7(f) below) that is submitted but not resolved before the Termination Date (such amount being referred to as the "Disputed Claim Amount").
(d) Within three (3) business days after the Termination Date (the "Release Date"), the Escrow Agent shall release from escrow to McCormack all or any then remaining portion of the Escrow ▇▇▇▇, ▇▇ss the Disputed Claim Amount, if applicable. The Escrow Agent shall in all events release all of the remaining Escrow Fund (including the Disputed Claim Amount) on or before that date that shall be three (3) months after the Release Date (the "Disputed Claim Release Date") unless on or prior to the Disputed Claim Release Date, the parties to this Agreement (other than the Escrow Agent, Parent ) shall have (i) resolved any dispute by settlement and provided the Stockholder Representative on behalf Escrow Agent with mutually executed delivery instructions with respect to the portion of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith Escrow Fund then held by the Escrow Agent, Parent and of (ii) any party shall have commenced a legal action or arbitration to resolve such dispute, in which case the Stockholder Representative Escrow Agent shall continue to hold any then remaining portion of the Escrow Fund (including the “Escrow Agreement”)Disputed Claim Amount) until such action or arbitration is concluded.
(iie) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation The Escrow Amount”) shall Fund, or any beneficial interest therein, may not be allocated from the Indemnification Escrow Amount to address Losses pledged, sold, assigned or transferred, including by operation of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation law, by McCormack or be taken or reached by any legal or equitable pr▇▇▇▇▇ ▇▇ satisfaction of debt or other liability of McCormack, prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification delivery to McCormack of the Escrow Amount in respect of indemnification claims made pursuant to Article IXF▇▇▇ ▇▇ ▇▇e Escrow Agent as provided herei▇.
(iiif) Eighteen Upon receipt by the Escrow Agent on or before the Termination Date of a certificate signed by any executive officer of Fonix or Buyer (18an "Officer's Certificate")
(i) months following stating that with respect to the indemnification obligations of the Sellers and McCormack pursuant to this Agreement, Damages exist, and (▇▇) ▇▇▇cifying in reasonable detail the individual items of such Damages included in the amount so stated, the date each such item was paid or became payable, and the nature of the misrepresentation, breach of warranty or covenant, or other claim to which such item is related, the Escrow Agent shall within two (2) Business Days deliver to McCormack a copy of the Officer's Certificate. No earlier than ▇▇▇ (10) Business Days and no later than fifteen (15) Business Days after the originally delivery of the Officer's Certificate to the Escrow Agent, the Escrow Agent shall deliver to Fonix or Buyer (as specified in the Officer's Certificate) out of the escrow, as promptly as practicable, all or a portion of the Escrow Fund having a value equal to the dollar amount of such Damages, unless prior to such delivery McCormack commences an action to prohibit such delivery, ▇▇ ▇▇▇▇▇ case, the Escrow Agent shall continue to hold the amount of the claim set forth in the Officer's Certificate until such dispute is resolved. For the purpose of compensating Fonix for its Damages, Escrow Shares shall be valued at their stated value.
(g) The Escrow Agent shall have the authority to effect any transfer of Escrow Shares contemplated by the Escrow Agreement. Fonix will cooperate with the Escrow Agent in promptly issuing stock certificates to effect such transfers or replacement stock certificates for any portion of the Escrow Fund not transferred out of the escrow.
(h) Notwithstanding anything to the contrary herein or in the Escrow Agreement, on the first anniversary of the Closing Date, the then-remaining balance Escrow Agent shall release and distribute to McCormack a total of Four Hundred (400) Escrow Shares, pro▇▇▇▇▇ ▇▇at, as of such date, and giving effect to and after such distribution, the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released Fund continues to have deposited shares having sufficient stated value at least equal to the Stockholder Representative (amounts claimed under any Officer's Certificate submitted on or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the such release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrolldate.
Appears in 1 contract
Sources: Exchange Agreement (Fonix Corp)
Escrow. At the Closing, Parent shall deposit, or cause to be deposited, with the escrow agent (i) Notwithstanding the provisions of Section 2.6(a"Escrow Agent"), as security for certain the benefit of the Stockholders, a certificate (issued in the name of the Escrow Agent or its nominee) representing 900,000 fully paid and nonassessable shares of Parent Common Stock (the "Escrow Shares"), which Escrow Shares represent ten percent (10%) of the Initial Merger Consideration. The Escrow Shares shall be delivered to the Escrow Agent for following purposes: (a) securing and satisfying the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants Stockholders as set forth in Article 9 of this Agreement Agreement; (b) to satisfy the payment obligation, if any, of Stockholders under Section 2.3 of this Agreement; and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable (c) to provide a means for parent to exercise its set-off rights pursuant to Section 2.6(a), 5.21 (i) an amount Recovery of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Edwards Holdback Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount Shares shall be released to the Parties according to held and di▇▇▇▇▇▇ of in accordance with the terms and conditions of an escrow agreement dated as of this Agreement and the Closing Date Escrow Agreement, in a form reasonably acceptable to the parties thereto (the "Escrow Agreement"), to be entered into at the Effective Time, by and among Parent, the Stockholder Representative and the Escrow Agent. The Escrow Shares shall be deemed deducted on a pro rata basis from the Initial Merger Consideration each of the Stockholders would otherwise have been entitled to receive as part of the Initial Merger Consideration for their shares of Company Capital Stock at the Effective Time pursuant to Section 2.1(b)(i), and, subject to the provisions of this Agreement and the Escrow Agreement. The Escrow Shares shall be held as a trust fund and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party. Approval of this Agreement and the Merger by the Stockholders shall constitute approval of the Escrow Agreement and of all of the arrangements relating thereto, including without limitation the placement of the Escrow Shares in escrow, and the approval of the appointment of the Stockholder Representative. The Escrow Shares shall not be distributed to the Stockholders until at least eighteen (18) months after the Effective Time and shall only be distributed in accordance with the terms and conditions of this Agreement and the Escrow Agreement (the actual date the Escrow Shares are distributed is referred to as the "Distribution Date"). In the event that Parent shall have asserted, prior to the Distribution Date, a claim for indemnification pursuant to Article 9, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon shall endeavor in good faith to determine a reasonable estimate of the maximum amount of such claim, which claim shall be set off in accordance with Section 9.6 and the Escrow Agreement, and shall instruct the Escrow Agent to deliver any excess amount of Escrow Shares to the Exchange Agent for distribution to the Stockholders in accordance with the Exchange Agreement. Upon Final Resolution of the indemnification claim(s), there shall be returned to Parent that number of Escrow Shares equal to the quotient of the aggregate claim(s) being so paid divided by the Escrow AgentAverage Market Price, but appropriately adjusted in the event that there occurs any stock dividend, stock split, or similar event with respect to the Parent Stock after the Effective Time, and the Stockholder Representative (Escrow Shares will be deemed permanently reduced and released from escrow and automatically returned to the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses status of authorized and unissued shares of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein capital stock and such Escrow Shares shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall not be released available for distribution to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to all in accordance with the terms and conditions as set forth in of the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Escrow. (i) Notwithstanding On the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction DocumentsClosing Date, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively deposit with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. US Bank, N.A. N.A., which will serve as escrow agent (the “Escrow Agent”). The ) pursuant to an Escrow Amount shall be released to Agreement substantially in the Parties according to the terms and conditions of an escrow agreement dated form attached hereto as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative Exhibit E (the “Escrow Agreement”).
, a portion of the Cash Consideration equal to $7,000,000 and that number of Merger Shares having a fair market value (calculated at the IPO Price) equal to $7,000,000, for the purpose of securing (i) the obligations of the Company Shareholders under Section 1.5 hereof and (ii) An amount equal to Five Million Dollars ($5,000,000) the indemnification obligations of the Company Shareholders set forth in Article VIII hereof (the cash and Merger Shares deposited into escrow, the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation MattersAssets”); provided. The Escrow Assets shall not include any interest, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount dividends or other distributions (other than dividends or distributions of equity securities of Parent) made in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions Merger Shares comprising a portion thereof. Except as set forth otherwise provided in the Escrow Agreement, the Escrow Assets shall be held by the Escrow Agent for a period ending on the Indemnification Expiration Date. The Escrow Assets shall be held in trust and shall not be subject to any Security Interest, trustee process or any other judicial process of any creditor of any Party, and shall be held and disbursed solely for the purposes and in accordance with the terms of the Escrow Agreement. The costs, fees and expenses of the Escrow Agent shall be split equally between Parent and the Company Shareholders.
(iva) Thirty-six (36) months following The adoption of this Agreement and the Closing Date, the then-remaining balance approval of the Documentation Escrow Amount Merger by the Company Shareholders shall be released to the Stockholder Representative (or its designee) for the benefit constitute approval of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon , the earlier of (A) five (5) years following Escrow Agent, the Closing Date or (B) Depositary Agreement, the final resolution Exchange Agent and settlement of all matters and Actions related of the arrangements relating thereto, including the indemnification obligations of the Company Shareholders, the placement of the Escrow Assets in escrow, the appointment of the Shareholders’ Representative, the grant to the Identified Matters, the then-remaining balance Shareholders’ Representative of the Identified Matters Escrow Amount shall be released power and authority to act on behalf of the Company Shareholders in such capacity pursuant to the Stockholder Representative (or its designee) for Escrow Agreement and the benefit indemnification of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent Shareholders’ Representative pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit 1.14 of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow this Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Escrow. (ia) Notwithstanding On the provisions Closing Date, Purchaser shall pay the Escrow Agent any upfront administration fee of Section 2.6(a)the Escrow Agent, if any, and shall deliver to the Escrow Agent, as security a contribution to the Escrow Fund, cash in an amount equal to the Escrow Amount, of which the Adjustment Escrow Amount shall be deposited in an account designated for certain the purpose of securing any recovery of the Adjustment Amount by Purchaser under Section 2.10 and, of which the Indemnity Escrow Amount shall be deposited in a separate account designated for the purpose of securing the Purchaser Indemnified Parties’ indemnification obligations rights under Article VII. The Escrow Fund shall be held by the Escrow Agent in accordance with the terms of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from terms of the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated substantially in the form attached hereto as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative Exhibit C (the “Escrow Agreement”). The Escrow Fund shall be held as a trust fund and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any Person and shall be held and disbursed solely for the purposes and in accordance with the terms of this Agreement and the terms of the Escrow Agreement.
(iib) An amount equal to Five Million Dollars Within five ($5,000,0005) Business Days after the date that is 12 months after the Closing Date (the “Documentation Indemnity Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation MattersRelease Date”); provided, however, that nothing contained herein Purchaser and the Stockholder Representative shall prevent provide a Parent Indemnified Party’s recovery from joint written instruction to the Indemnification Escrow Amount in respect of indemnification claims made pursuant Agent to Article IX.
(iii) Eighteen (18) months following cause the Closing Date, the then-remaining balance of the Indemnification Indemnity Escrow AmountFund (less an amount equal to then outstanding indemnification claims) to be released or paid to the Stockholders and the Company Optionholders in accordance with the Payment Procedures.
(c) Any portion of the Adjustment Escrow Fund that is not subject to a then outstanding determination by the Independent Accountant, less including, for the Documentation avoidance of doubt, any remaining portion of the Adjustment Escrow AmountAmount after Purchaser’s recovery of any Adjustment Amount as finally determined in accordance with this Agreement, shall be released to the Stockholder Representative Stockholders and Company Optionholders in accordance with Section 2.10.
(or its designeed) for Purchaser shall be treated as the benefit owner of the Executing StockholdersEscrow Amount for Tax purposes, and any income, gains, losses and expenses of the Executing Option Holders Escrow Amount shall be included by Purchaser as taxable income or loss of Purchaser. Any income and Non-Owner Participantsgains of the Escrow Amount shall be available to Purchaser as part of the Escrow Amount, subject but if not paid to Purchaser in connection with a Downward Adjustment Amount or an indemnification claim, shall ultimately be distributable to the terms Stockholders and conditions as set forth Company Optionholders in accordance with this Agreement and the Escrow Agreement.
(ive) Thirty-six (36) months following The approval of this Agreement by the Stockholders, and the acceptance by a Stockholder on the Closing Date, the then-remaining balance Date of its applicable portion of the Documentation Aggregate Closing Merger Consideration, shall constitute approval of the Escrow Agreement and of all of the arrangements relating thereto, including the placement of the Escrow Amount shall be released to with the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to Escrow Agent in accordance with the terms hereof and conditions as set forth in the Escrow Agreementthereof.
(vf) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution Each Stockholder and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be Company Optionholder will deemed to have contributed on behalf to each of each Executing Stockholder, each Executing Option Holder the Escrow Funds and each Non-Owner Participant, each the Stockholder Representative Fund based upon such Personholder’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollShare.
Appears in 1 contract
Escrow. (ia) Notwithstanding Subject to Section 6.5, Parent shall cause $7,000,000 in cash (the provisions “Escrow Deposit”) from the Merger Consideration to be deposited in immediately available funds on the Closing Date into the Escrow Account to be held, invested, released and distributed by the Escrow Agent pursuant to the terms of Section 2.6(a1.5 (a) through (d), as security for certain Section 2.3 and Section 10.3(a) of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction DocumentsEscrow Agreement. The Escrow Deposit will be comprised of the following components: (a) $1,500,000, which will be held for purposes of satisfying any Post-Closing Operating Capital Adjustment payable to Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,0002.3(a) (the “Indemnification Escrow AmountPost-Closing Adjustment Fund”); and (b) $5,500,000, which will be held for purposes of, and will serve as the sole and exclusive source for, satisfaction of any indemnification or other claims of Parent or the Merger Sub (iiincluding, after the Closing, the Surviving Corporation) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000under Sections 1.5(b) and 8.11 and Article 10 (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation MattersIndemnity Fund”); provided, however, that nothing contained herein the foregoing sentence shall prevent not further limit or otherwise constitute a defense of any claims that Parent Indemnified Party’s recovery or the Merger Sub (including, after the Closing, the Surviving Corporation) may have pursuant to the Principal Shareholders Agreement on the terms set forth therein. In addition, $500,000 (the “Representative Amount”) from the Indemnification Merger Consideration shall be delivered by Parent to the Representative and held directly by the Representative in an account (the “Representative Fund”) for purposes of satisfying obligations of or to the Representative under Section 1.11(d) and (e). Each Securityholder’s percentage interest in the amounts deposited in each of the Post-Closing Adjustment Fund, the Indemnity Fund, the Representative Fund and the CUNA Escrow Amount Account in respect the event any of indemnification claims made pursuant such amounts may be ultimately released and distributed to Article IXthe Securityholders will be set forth on the schedule which is attached to this Agreement as Schedule 1.5 (the “Escrow Allocation Schedule”).
(iiib) Eighteen If the Post-Closing Operating Capital Adjustment payable to Parent pursuant to Section 2.3(a) exceeds the amount in the Post-Closing Adjustment Fund, Parent shall be entitled to receive payment of any excess amount from the Indemnity Fund and the Indemnity Fund shall be reduced by the amount of any such excess.
(18c) months following Releases from the Post-Closing DateAdjustment Fund shall be governed by Section 2.3(d) below and the Escrow Agreement. Subject to establishing a reserve adequate for claims that have been asserted in good faith within such applicable time periods by Parent pursuant to Section 10.2, the then-balance remaining balance of in the Indemnification Escrow Amount, less the Documentation Escrow Amount, Indemnity Fund not subject to such reserve shall be released and distributed to the Stockholder Representative (or its designee) Securityholders on April 30, 2006 and the balance subject to such reserve and not thereafter used for the benefit of the Executing Stockholders, the Executing Option Holders related claims shall be released and Non-Owner Participants, subject to the terms and conditions distributed promptly as set forth provided in the Escrow Agreement.
(ivd) Thirty-six (36) months following The remaining cash, if any, held by the Closing Date, Representative in the then-remaining balance of the Documentation Escrow Amount Representative Fund shall be released delivered to the Stockholder Securityholders in the relative percentages set forth on the Escrow Allocation Schedule by the Representative (or its designee) for at the benefit of the Executing StockholdersRepresentative’s discretion; provided, the Executing Option Holders and Non-Owner Participantshowever, subject that all such remaining cash shall be delivered to the terms Securityholders on the later of (i) December 31, 2006 and conditions (ii) the date on which no claims against the Indemnity Fund or the Representative exist.
(e) Any interest on the Escrow Deposit shall be paid as set forth provided in the Escrow Agreement.
(vf) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related The CUNA Escrow Account, a separate escrow fund established solely with respect to the Identified MattersCUNA Consideration, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions established as set forth in the Escrow AgreementSection 1.12 below.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (Equifax Inc)
Escrow. (ia) Notwithstanding Seller and Buyer hereby designate the Title Company as “Escrow Agent” to receive and hold the Deposit, and Escrow Agent agrees to act in such capacity subject to the provisions of this Section 2.6(a)21. Promptly upon receipt, as security for certain Escrow Agent shall hold the Deposit in a demand or money market account in a federally insured financial institution approved by Buyer and Seller located in Philadelphia, Pennsylvania, and such funds may not be commingled with any other deposits held by Escrow Agent. Any interest which accrues on the Deposit shall be deemed to be part of the indemnification obligations of the Executing Stockholders, the Executing Option Holders Deposit and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively disposed with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Deposit in accordance with this Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”)21.
(iib) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation On receipt by Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses Agent of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation statement executed by Buyer prior to Closing (“Documentation Matters”); providedto, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following on or after the Closing Date, that this Agreement has been terminated by Buyer as of right or because of a default by Seller under this Agreement, Escrow Agent shall within five (5) days thereafter deliver a copy of said statement to Seller in accordance with Section 17 and return the then-remaining balance Deposit to Buyer on the tenth (10th) day after receipt by Escrow Agent of said statement unless Escrow Agent, prior to such date, receives from Seller a statement contesting the accuracy of Buyer’s statement and demanding retention of the Indemnification Deposit by Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow AgreementAgent.
(ivc) Thirty-six (36) months following On receipt by Escrow Agent of a statement executed by Seller prior to, on or after the Closing Date, the then-remaining balance that this Agreement has been terminated because of the Documentation a default by Buyer under this Agreement, Escrow Amount Agent shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) within five (5) years following the Closing Date or (B) the final resolution and settlement days thereafter deliver a copy of all matters and Actions related said statement to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released Buyer in accordance with Section 7.1617 and deliver the Deposit to Seller on the tenth (10th) day after receipt by Escrow Agent of said statement unless Escrow Agent, subject prior to such date, receives from Buyer a statement contesting the terms accuracy of Seller’s statement and conditions as set forth in demanding retention of the Deposit by Escrow AgreementAgent.
(viiid) When paid On receipt by Escrow Agent of a notice of objection from Seller or Buyer under subparagraphs (b) or (c) above, Escrow Agent shall retain the Deposit and thereafter deliver the proceeds of the Deposit to either Seller or Buyer, as Seller and Buyer may direct by a statement executed by them both, provided Escrow Agent may at any time after receiving such a statement retain the Deposit, and with notice to Seller and Buyer, surrender the Deposit to a court of competent jurisdiction in the Commonwealth of Pennsylvania for such disposition as may be directed by such court.
(e) Upon delivery of the Deposit to either Seller, Buyer or a court of competent jurisdiction under and pursuant to the provisions of this Section 21, Escrow Agent shall be relieved of all liability, responsibility or obligation with respect to or arising out of the Deposit and any and all of its obligations arising therefrom.
(f) The Escrow Agent is executing this Agreement for the sole purpose of agreeing to act as such in accordance with the terms of this Section 2.6(c)(iv), Parent 21.
(g) The provisions of this Section 21 shall be deemed to have contributed on behalf survive Closing or the earlier termination of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollthis Agreement.
Appears in 1 contract
Sources: Agreement to Sell and Purchase Real Estate (Kulicke & Soffa Industries Inc)
Escrow. (i) Notwithstanding any provision of this Agreement to the provisions contrary, the Closing of Section 2.6(a)the Transactions contemplated hereunder shall be completed in escrow, with all deliveries in connection with the Transactions hereunder being made to ▇▇▇▇▇▇▇▇ ▇▇▇▇, Esq., as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. escrow agent (the “Escrow Agent”). The , to be held in escrow and disposed of by the Escrow Amount shall be released to the Parties according to Agent in accordance with the terms and conditions provisions of an escrow agreement dated as of the Closing Date a certain Deposit and Escrow Agreement by and among the between Seller, Buyer and Escrow AgentAgent dated May 17, Parent and the Stockholder Representative on behalf 2004, as amended, a copy of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative which is attached hereto as Schedule 1.9 (the “Escrow Agreement”). The parties hereto agree to amend the Escrow Agreement to the extent required to make the provisions thereof consistent with the terms of the escrow set forth herein. In furtherance of the escrow closing, the following shall apply:
(a) In lieu of delivering the Share Purchase Price to the Stockholders as provided for in Section 1.5(a), Buyer shall deliver or cause to be delivered to Escrow Agent for deposit into escrow pursuant to the Escrow Agreement, the amount of $315,000, which together with the Initial Deposit (as defined in the Escrow Agreement) of $25,000 previously paid into escrow by Buyer, represents the Share Purchase Price.
(iib) An amount equal In lieu of delivering to Five Million Dollars ($5,000,000) (Buyer certificates for the “Documentation Shares provided for in Section 1.6, Stockholders shall deliver or cause to be delivered to Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made Agent for deposit into escrow pursuant to Article IXthe Escrow Agreement, certificate(s) registered in the name of the Stockholders representing the Shares, accompanied by stock powers duly endorsed in blank, with Stockholder’s signature medallion guaranteed by a national bank.
(iiic) Eighteen In lieu of delivering the Note Purchase Price to the Seller as provided for in Section 1.5(b), Buyer shall deliver or cause to be delivered to Escrow Agent for deposit into escrow pursuant to the Escrow Agreement, the Note Purchase Price.
(18d) months In lieu of delivering to Buyer the original Notes and the Note Assignment transferring the Notes to Buyer as provided for in Section 1.7, Seller shall deliver or cause to be delivered to Escrow Agent for deposit into escrow pursuant to the Escrow Agreement, the original Notes and the Note Assignment, duly executed by Seller.
(e) In lieu of delivering the New Share Purchase Price to the Company as provided for in Section 1.5(c), Buyer shall deliver or cause to be delivered to Escrow Agent for deposit into escrow pursuant to the Escrow Agreement, the amount of $50,000 representing the New Share Purchase Price.
(f) In lieu of delivering to Transfer Agent the Issuance Direction provided for in Section 1.6, the Company shall deliver or cause to be delivered to Escrow Agent for deposit into escrow pursuant to the Escrow Agreement, the Issuance Direction.
(g) Concurrently with the Closing, Buyer shall, in writing, instruct the Escrow Agent to deliver to the Company the original Notes, the Note Assignment, a notice of election to convert the Notes, in substantially the form attached hereto as Exhibit C (“Buyer Conversion Notice”), with instructions from the Company directing the Transfer Agent to issue to Buyer, in connection with the conversion of the Notes, 24,577,395 shares of the Company’s common stock (“Buyer Conversion Shares”). Escrow Agent shall promptly upon Closing deliver the foregoing documents and instructions to the Transfer Agent.
(h) Concurrently with the Closing, Seller shall, in writing, instruct the Escrow Agent to deliver to the Company the original Seller Notes and a notice of election to convert the Seller Notes, in substantially the form attached hereto as Exhibit D (“Seller Conversion Notice”), with instructions from the Company directing the Transfer Agent to issue to Seller, in connection with the conversion of the Seller Notes, 1,200,000 shares of the Company’s common stock (“Seller Conversion Shares”). Escrow Agent shall promptly upon Closing deliver the foregoing documents and instructions to the Transfer Agent
(i) At such time as all of the conditions precedent to Closing under Article VIII hereof have been satisfied by the respective parties, and no party shall be in breach any term, warranty, representation, covenant or agreement applicable to them, each party shall have made all deliveries required by each of them under this Agreement to the Escrow Agent, and the expiration ten (10) day waiting period following the Closing Datefiling and mailing of the Information Statement (as defined in Section 7.5), the then-remaining balance parties hereto shall provide written notice to Escrow Agent directing that the escrow be disposed of in accordance with the Indemnification Escrow Amount, less Agreement and the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit terms of the Executing Stockholders, the Executing Option Holders and Non-Owner Participantsthis Agreement, subject to the terms Indemnity Escrow Fund to be handled in accordance with Article IX hereof and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Escrow. With respect to each Purchaser that has not agreed to wire its Subscription Amount directly to the Company:
(i) Notwithstanding Simultaneously with the provisions execution and delivery of this Agreement by such Purchaser, such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing such Purchaser’s Subscription Amount to be paid to a non-interest bearing escrow account of L▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (the “Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being held in escrow by the Escrow Agent are referred to herein as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 2.6(a)2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, as security for certain from the date of its receipt of the indemnification obligations funds constituting the Escrow Amount until the soonest of:
(A) in the case of the Executing Stockholderstermination of this Agreement in accordance with Section 6.17, in which case, if the Escrow Agent then holds any portion of the Escrow Amount, then: (1) in the event of a termination by the Company, the Executing Option Holders Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and Non-Owner Participants in the event of a termination by a Purchaser, the Escrow Agent shall return the portion of the Escrow Amount received from such Purchaser which it then holds, to such Purchaser, in accordance with written wire transfer instructions received from the Purchaser; and (2) if the Escrow Agent has not received written wire transfer instructions from any Purchaser before the 30th day after such termination date, then the Escrow Agent may, in its sole and absolute discretion, either (x) deposit that portion of the Escrow Amount to be returned to such Purchaser in a court of competent jurisdiction on written notice to such Purchaser, and the Escrow Agent shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Escrow Amount pending receipt of written wire transfer instructions from such Purchaser or an order from a court of competent jurisdiction; OR
(B) in the case of the Closing, receipt of written instructions from the Company and the Lead Placement Agent that the Closing shall have been consummated, in which case, the Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (1) to the Placement Agents, the fees payable to such Placement Agents (which fees shall be set forth in such instructions), and (2) the balance of the aggregate purchase price to the Company.
(iii) The Company and the Purchasers contributing to the Escrow Amount acknowledge and agree for the benefit of the Escrow Agent (which shall be deemed to be a third party beneficiary of this Section 2.1(d)) as follows:
(A) The Escrow Agent: (i) is not responsible for the performance by the Company, the Purchasers or Placement Agents of this Agreement or any of the Transaction Documents or for determining or compelling compliance therewith; (ii) is only responsible for (A) holding the Escrow Amount in escrow pending receipt of written instructions from the Company and the Lead Placement Agent directing the release of the Escrow Amount, and (B) disbursing the Escrow Amount in accordance with the written instructions from the Company and the Lead Placement Agent, each of the responsibilities of the Escrow Agent in clause (A) and (B) is ministerial in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent (collectively, the “Escrow Agent Duties”); (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with indemnification acceptable to it, in its sole discretion; (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper Person, and shall have no responsibility for making inquiry as to, or for determining, the genuineness, accuracy or validity thereof, or of the authority of the Person signing or presenting the same; and (v) may consult counsel satisfactory to it, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel. Documents and written materials referred to in this Section 2.1(d)(iii)(A) include, without limitation, e-mail and other electronic transmissions capable of being printed, whether or not they are in fact printed; and any such e-mail or other electronic transmission may be deemed and treated by the Escrow Agent as having been signed or presented by a Person if it bears, as sender, the Person’s e-mail address.
(B) The Escrow Agent shall not be liable to anyone for any action taken or omitted to be taken by it hereunder, except in the case of Escrow Agent’s gross negligence or willful misconduct in breach of the Escrow Agent Duties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGE OR LOSS (INCLUDING BUT NOT LIMITED TO LOST PROFITS) WHATSOEVER, EVEN IF THE ESCROW AGENT HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION.
(C) The Company hereby indemnifies and holds harmless the Escrow Agent from and against any and all loss, liability, cost, damage and expense, including, without limitation, reasonable counsel fees and expenses, which the Escrow Agent may suffer or incur by reason of any action, claim or proceeding brought against the Escrow Agent arising out of or relating to the performance of the Escrow Agent Duties, except to the extent such action, claim or proceeding is exclusively the result of the willful misconduct, bad faith or gross negligence of the Escrow Agent.
(D) The Escrow Agent has acted as legal counsel to the Placement Agents in connection with this Agreement and the other Transaction Documents, Parent is merely acting as a stakeholder under this Agreement and is, therefore, hereby authorized to continue acting as legal counsel to the Placement Agents including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter. The Purchasers hereby expressly consent to permit the Escrow Agent to represent the Placement Agents in connection with all matters relating to this Agreement, including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter, and hereby waives any conflict of interest or appearance of conflict or impropriety with respect to such representation. Each of the Purchasers has consulted with its own counsel specifically about this Section 2.1(d) to the extent they deemed necessary, and has entered into this Agreement after being satisfied with such advice.
(E) The Escrow Agent shall retain have the right at any time to resign for any reason and be discharged of its duties as escrow agent hereunder (including without limitation the Escrow Agent Duties) by giving written notice of its resignation to the Company, the Placement Agents and the Purchasers at least ten (10) calendar days prior to the specified effective date of such resignation. All obligations of the Escrow Agent hereunder shall cease and terminate on the effective date of its resignation and its sole responsibility thereafter shall be to hold the Escrow Amount, for a period of ten (10) calendar days following the effective date of resignation, at which time,
(I) if a successor escrow agent shall have been appointed and have accepted such appointment in a writing to both the Company and the Purchasers, then upon written notice thereof given to each of the Purchasers, the Escrow Agent shall deliver the Escrow Amount to the successor escrow agent, and upon such delivery, the Escrow Agent shall have no further liability or obligation; or
(II) if a successor escrow agent shall not have been appointed, for any reason whatsoever, the Escrow Agent shall at its option in its sole discretion, either (A) deliver the Escrow Amount to a court of competent jurisdiction selected by the Escrow Agent and give written notice thereof to the Company, the Placement Agents and the Purchasers, or (B) continue to hold the Escrow Amount in escrow pending written direction from the Merger Consideration otherwise deliverable pursuant Company and the Lead Placement Agent in form and formality satisfactory to Section 2.6(a)the Escrow Agent.
(F) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions with respect to the Escrow Amount or any portion thereunder which, in its sole discretion, are in conflict either with other instructions received by it or with any provision of this Agreement, the Escrow Agent shall have the absolute right to suspend all further performance of its duties under this Agreement (i) an amount except for the safekeeping of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification such Escrow Amount”)) until such uncertainty or conflicting instructions have been resolved to the Escrow Agent’s sole satisfaction by final judgment of a court of competent jurisdiction, (ii) an amount joint written instructions from the Company, the Lead Placement Agent and all of cash equal the Purchasers, or otherwise. In the event that any controversy arises between the Company and one or more of the Purchasers or any other party with respect to One Million Two Hundred Thousand Dollars ($1,200,000) (this Agreement or the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant Agent shall not be required to Section 7.16, determine the JV Buyout proper resolution of such controversy or the proper disposition of the Escrow Amount, the “Escrow Amount”), and shall have the absolute right, in its sole discretion, to deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to with the Parties according to the terms and conditions clerk of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith court selected by the Escrow AgentAgent and file a suit in interpleader in that court and obtain an order from that court requiring all parties involved to litigate in that court their respective claims arising out of or in connection with the Escrow Amount. Upon the deposit by the Escrow Agent of the Escrow Amount with the clerk of such court in accordance with this provision, Parent the Escrow Agent shall thereupon be relieved of all further obligations and the Stockholder Representative (the “Escrow Agreement”)released from all liability hereunder.
(iiG) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”The provisions of this Section 2.1(d) shall be allocated from the Indemnification Escrow Amount to address Losses survive any termination of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow this Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ardea Biosciences, Inc./De)
Escrow. a. The Deposit and the SAE Deposit (ias defined in Section 20(c)) Notwithstanding shall be held in escrow by Escrow Agent, upon the following terms and conditions:
i. Escrow Agent shall deposit the Deposit and the SAE Deposit in separate interest-bearing accounts or invest the Deposit and the SAE Deposit in money market or monetary funds;
ii. Escrow Agent shall deliver to Seller the Deposit (together with all interest thereon, if any) at and upon the Closing;
iii. Escrow Agent shall release portions of the SAE Deposit from time-to-time prior to Closing or the termination of this Agreement upon request of Seller in accordance with the terms of this Agreement and shall deliver to Purchaser (or as directed by Purchaser) the balance of the SAE Deposit, if any (together with all interest earned thereon, if any) at and upon Closing;
iv. If this Agreement is terminated in accordance with the terms hereof, or if the Closing does not take place under this Agreement by reason of the failure of either party to comply with such party’s obligations hereunder, Escrow Agent shall pay the Deposit (together with all interest thereon, if any) to Seller and/or Purchaser, as the case may be, in accordance with the provisions of this Agreement and the Escrow Agent shall pay the remaining balance of the SAE Deposit, if any (together with all interest earned thereon, if any) to the party entitled to receive the Deposit.
b. It is agreed that:
i. The duties of Escrow Agent are only as herein specifically provided, and, except for the provisions of Section 2.6(a)19(c) hereof, as security are purely ministerial in nature, and Escrow Agent shall incur no liability whatever except for certain its own willful misconduct or gross negligence;
ii. Escrow Agent shall not be liable or responsible for the collection of the indemnification obligations proceeds of any checks used to pay the Deposit or the SAE Deposit;
iii. In the performance of its duties hereunder, Escrow Agent shall be entitled to rely upon any document, instrument or signature believed by it in good faith to be genuine and signed by either of the Executing Stockholdersother parties hereto or their successors;
iv. Escrow Agent may assume, so long as it is acting in good faith, that any person purporting to give any notice of instructions in accordance with the Executing Option Holders and Non-Owner Participants set forth in provisions hereof has been duly authorized to do so;
v. Escrow Agent shall not be bound by any modification, cancellation or rescission of this Agreement unless in writing and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date signed by and among the Escrow Agent, Parent Seller and Purchaser;
vi. Except as otherwise provided in Section 19(c) hereof, Seller and Purchaser shall jointly and severally reimburse and indemnify Escrow Agent for, and hold it harmless against, any and all loss, liability, costs or expenses in connection herewith, including reasonable attorneys’ fees and disbursements, incurred without willful misconduct or gross negligence on the Stockholder Representative on behalf part of Escrow Agent arising out of or in connection with its acceptance of, or the Executing Stockholdersperformance of its duties and obligations under, this Agreement, as well as the Executing Option Holders costs and Non-Owner Participants, in a reasonable form mutually agreed upon expenses of defending against any claim or liability arising out of or relating to this Agreement;
vii. Each of Seller and Purchaser hereby releases Escrow Agent from any act done or omitted to be done by Escrow Agent in good faith in the performance of its duties hereunder; and
viii. Escrow Agent may resign upon ten (10) days written notice to Seller and Purchaser. If a successor Escrow Agent is not appointed by Seller and Purchaser within such ten (10) day period, Escrow Agent may petition a court of competent jurisdiction to name a successor.
c. Escrow Agent is acting as a stakeholder only with respect to the Deposit and SAE Deposit. Escrow Agent, Parent except in the event of the Closing, shall not deliver the Deposit or the SAE Deposit (or any portion thereof) except on seven (7) days’ prior written notice to the parties and only if neither party shall object within such seven (7) day period. If there is any dispute as to whether Escrow Agent is obligated to deliver all or any portion of the Deposit or the SAE Deposit or as to whom the Deposit or SAE Deposit is to be delivered, Escrow Agent shall not be required to make any delivery, but in such event Escrow Agent may hold the same until receipt by Escrow Agent of an authorization in writing, signed by all of the parties having any interest in such dispute, directing the disposition of the Deposit (together with all interest thereon, if any) and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance or any portion of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amountSAE Deposit, if any, that is payable to Parent pursuant to Section 2.7(b(together with all interest thereon, if any)) shall be released to the Stockholder Representative (, or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the absence of such authorization, Escrow Agreement.
Agent may hold the Deposit (viitogether with all interest thereon, if any) If applicable, and the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance SAE Deposit, if any, (together with Section 7.16all interest thereon, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(ivif any), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share until the final determination of the Escrow Accountrights of the parties in an appropriate proceeding. Notwithstanding anything herein to the contrary, any If such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to written authorization is not given or proceedings for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled such determination are not begun within thirty (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority30) as soon as practicable (but in no event later than the Company’s next payroll date days after the date Escrow Agent shall have received written notice of such dispute, and thereafter diligently continued, Escrow Agent may, but is not required to, bring an appropriate action or proceeding for leave to deposit the Deposit (together with all interest thereon, if any) and the balance of the release from SAE Deposit, if any, (together with all interest thereon, if any), in court pending such determination. Escrow Agent shall be reimbursed for all costs and expenses of such action or proceeding including, without limitation, reasonable attorneys’ fees and disbursements, by the party determined not to be entitled to the Deposit or the SAE Deposit, or if the Deposit or SAE Deposit is split between the parties hereto, such costs of Escrow Account or Stockholder Representative ReserveAgent shall be split, pro rata, between Seller and Purchaser, as applicablethe case may be, in inverse proportion to the amount of the Deposit received by each. Upon making delivery of the Deposit (together with interest thereon, if any) through and the Company’s payrollbalance of the SAE Deposit, if any, (together with all interest thereon, if any), in the manner provided in this Agreement, Escrow Agent shall have no further obligation or liability hereunder.
d. Escrow Agent has executed this Agreement solely to confirm that Escrow Agent has received the Deposit and SAE Deposit and will hold the Deposit and SAE Deposit, in escrow, pursuant to the provisions of this Agreement.
Appears in 1 contract
Sources: Sale Purchase Agreement (American Realty Capital New York Recovery Reit Inc)
Escrow. (ia) Notwithstanding Escrow Amount shall be held by the provisions of Escrow Agent in the Escrow Account until paid in accordance with Section 2.6(a)2.5 and this Section 9 and the Escrow Agreement. From and after the Closing, as security the Escrow Amount will be available to compensate the Buyer Indemnified Parties for certain Losses in accordance with this Section 9 and the Escrow Agreement. The Escrow Agreement shall provide that following the Escrow Termination Date, the Escrow Agent shall pay to the Sellers, in accordance with the Allocation Schedule, the remainder of the indemnification obligations Escrow Funds no later than five (5) Business Days after the expiration of the Executing StockholdersEscrow Termination Date, other than such portion of the Executing Option Holders and Non-Owner Participants set forth Escrow Funds that is subject to pending but unresolved or unsatisfied Liability Claims specified in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) any Claim Notice (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow AgentRetained Amounts”). The Escrow Amount Agreement shall provide that any Retained Amounts shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner ParticipantsSellers, in a reasonable form mutually agreed upon in good faith by accordance with the Escrow AgentAllocation Schedule, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) no later than five (5) years following Business Days after the Closing Date or (B) the date of final resolution and settlement payment of all matters the outstanding claim for indemnification. In the event of a conflict between the Escrow Agreement and Actions related to the Identified Mattersthis Agreement, the then-remaining balance terms of this Agreement shall govern. The fees, costs and expenses of the Identified Matters Escrow Amount Agent shall be released to paid 50% by the Stockholder Representative (or its designee) for Buyer and 50% by the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow AgreementSellers.
(vib) On the Adjustment Payment Date, the then-remaining balance Any portion of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in Funds disbursed by the Escrow Agreement.
(vii) If applicable, Agent to compensate the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released Buyer Indemnified Parties for Losses in accordance with Section 7.16, subject 9 or to be paid to the terms and conditions as set forth in Sellers following the Escrow Agreement.
(viii) When paid Termination Date in accordance with Section 2.6(c)(iv), Parent 9.9(a) shall be deemed made in a ratio of Parent Stock to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share cash equal to the ratio of the Escrow Account. Notwithstanding anything herein Stock Amount to the contrary, any such amounts payable from Escrow Cash Amount deposited with the Escrow Account and Agent at Closing. For purposes of determining the value of any amounts payable from distributions made pursuant to this Section 9.9(b), shares of the Stockholder Representative Reserve to or for Parent Stock will be valued on the benefit basis of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollStock Value.
Appears in 1 contract
Escrow. At the Second Closing, Buyers shall deposit (ior shall cause Vertex to deposit) Notwithstanding an aggregate amount equal to 1,000,000 shares of Vertex Common Stock, as adjusted under Section 5.02 (the provisions of Section 2.6(a"Escrow Amount"), as security for certain by the delivery of a stock certificate representing in the indemnification obligations of aggregate the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, in an account (the Adjustment "Escrow Amount and, if applicable pursuant to Section 7.16, Account") established with a mutually agreed upon financial institution reasonably approved by the JV Buyout Parties (the "Escrow Amount, the “Escrow Amount”Agent"), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall to be released to the Parties according administered pursuant to the terms and conditions of set forth in an escrow agreement dated as in a form reasonably agreed upon by the parties (the "Escrow Agreement") to be entered into at the Second Closing by the Parties and the Escrow Agent. The Escrow Agreement shall, among other things, provide that (1) it shall be available to cover all Claims by Buyers for indemnification under this Agreement or any downward adjustment (without duplication) in the Closing Stock Consideration contemplated by Section 5.02 above, (2) 500,000 shares of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow AmountConsideration, less the Documentation Escrow Amountsum of [a] the number of shares surrendered or returned to Buyers (or Vertex) related to any paid indemnification Claims, plus [b] the number of shares covering any then outstanding indemnification Claims (including those which are final and liquidated and those which are not final and liquidated) and plus [c] the number of shares of the Vertex Common Stock used to cover any downward adjustment in the Closing Stock Consideration contemplated by Section 5.02 above, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and issued in the name of Sellers (or their Affiliates, as is designated by Sellers to Buyers and as is allowable under applicable Law) on September 15, 2015 and (3) any amounts payable from the Stockholder Representative Reserve remaining Escrow Amount (including any interest or dividends thereon), less any amount related to or for the benefit of an Executing Stockholderany then outstanding indemnification Claims (including those which are final and liquidated and those which are not final and liquidated), Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid issued in the name of Sellers (or its Affiliates, as is designated by Sellers to Buyers and as is allowable under applicable Law) on the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled eighteen (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority18) as soon as practicable (but in no event later than the Company’s next payroll date after the date month anniversary of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollSecond Closing Date.
Appears in 1 contract
Escrow. (i) Notwithstanding At the provisions Closing, the Buyer shall deliver to the Escrow Agent a stock certificate registered in the name of Section 2.6(a), as security the Escrow Agent or its nominee representing the Escrow Fund for certain the purpose of securing the indemnification obligations of the Executing Stockholders, Seller and the Executing Option Holders and Non-Owner Participants Shareholders set forth in this Agreement. The Escrow Fund shall be held by the Escrow Agent under the Escrow Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a)the terms thereof. The Escrow Fund shall be held as a trust fund and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party, and shall be held and disbursed solely for the purposes of and in accordance with the terms of the Escrow Agreement. Until the termination of the escrow in accordance with the terms of the Escrow Agreement, the Seller shall have the right, in its sole discretion to direct the sale for cash of all or any portion of the Escrow Shares (if any then make-up a portion of the Escrow Fund) in one or more transactions provided that (i) an amount the price per share for the sale of cash equal to Fifteen Million Dollars (the Escrow Shares is not less than $15,000,000) (the “Indemnification Escrow Amount”)1.00, (ii) an amount the proceeds from any such sale(s) shall be held in escrow by the Escrow Agent pursuant to the terms of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”)Agreement, and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”Seller may not direct any such sale during any blackout period under any insider trading policy or blackou▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇r, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), Buyer shall promptly execute any and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released all required joint instructions to the Parties according Escrow Agent to the terms facilitate any and conditions of an escrow agreement dated as all such sales of the Closing Date by and among Escrow Shares. Further, Seller shall have the Escrow Agent, Parent and sole discretion to direct the Stockholder Representative on behalf investment of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth amounts held in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released Fund pursuant to the Stockholder Representative (or its designee) for investment options specified in, and in accordance with the benefit of the Executing Stockholdersrestrictions of, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution , and settlement of Buyer agrees to promptly execute any and all matters and Actions related joint instructions to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released Agent to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders facilitate any and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreementall such investments.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Asset Purchase Agreement (Suncrest Global Energy Corp)
Escrow. For purposes of facilitating the enforcement of the provisions ------ of Section 1(a) above, the Stockholder agrees to deliver the certificate(s) for the Shares, together with an Assignment Separate from Certificate in the form attached to this Agreement as Attachment A executed by the Stockholder and by ------------ the Stockholder's spouse (if required for transfer), in blank, to the Secretary of the Company, or the Secretary's designee, to hold such certificate(s) and Assignment Separate from Certificate in escrow and to take all such actions and to effectuate all such transfers and/or releases as are required in accordance with the terms of this Agreement. The Stockholder hereby acknowledges that the Secretary of the Company, or the Secretary's designee, is so appointed as the escrow holder with the foregoing authorities as a material inducement to make this Agreement and that said appointment is coupled with an interest and is accordingly irrevocable. The Stockholder agrees that said escrow holder shall not be liable to any party hereof (or to any other party). The escrow holder may rely upon any letter, notice or other document executed by any signature purported to be genuine and may resign at any time. The Stockholder agrees that if the Secretary of the Company, or the Secretary's designee, resigns as escrow holder for any or no reason, the Board of Directors of the Company shall have the power to appoint a successor to serve as escrow holder pursuant to the terms of this Agreement. Upon release of any Shares from the repurchase option pursuant to this agreement, the escrow holder shall deliver (a) ninety percent (90%) of such released shares (i) Notwithstanding if such release occurs prior to July 1, 2000, to the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable Escrow Agent holding shares pursuant to Section 2.6(a)the Lock-Up Escrow Agreement to be executed among Company, Target, Escrow Agent, and Stockholders' Agents to be held or distributed in accordance with the terms thereof, and (ii) if such release occurs after June 30, 2000, to the Stockholder; and (b) ten percent (10%) of such released shares (i) an amount if such release occurs prior to the release of cash equal escrowed shares under section 2(d) of the Indemnity Escrow Agreement to Fifteen Million Dollars ($15,000,000) (be executed among Company, Target, Escrow Agent, and Stockholders' Agents to be held or distributed in accordance with the “Indemnification Escrow Amount”)terms thereof, and (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”)if such release occurs after such date, and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”)Stockholder.
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Escrow. At the Effective Time, ten percent (i10%) Notwithstanding the provisions of Section 2.6(a), as security for certain of the indemnification obligations sum of the Executing StockholdersMerger Shares and Stock Options (collectively, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i"Escrow Deposit") an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released delivered to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent to be held for a period ending on the Escrow Release Date, except the Escrow Deposit may be withheld after the Escrow Release Date to satisfy claims for indemnification which are the subject to a Claims Notice delivered prior to the Escrow Release Date. The Escrow Deposit shall be held and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith disbursed by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released Agent in accordance with Section 7.16, subject to the terms and conditions as set forth an Escrow Agreement in the form attached hereto as Exhibit C. For the purpose of any claim against the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv)Deposit hereunder, Parent the value per share of the Escrow Deposit shall be deemed to have contributed be the Closing Market Price (less the exercise price therefore with respect to the Stock Options). Except with respect to claims based on behalf fraud committed by the Company or the Equityholders, which are not limited, if the Closing occurs, Parent agrees that Parent's sole and exclusive remedy and recourse against the Equityholders under this Agreement for Losses attributable to any inaccuracy or breach of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share any representation or warranty of the Company or the Equityholders which is contained in this Agreement or the Letter of Transmittal or any Schedule or certificate delivered pursuant hereto or thereto other than Losses arising under Section 13.5 and from breaches of the representations and warranties set forth in Sections 3.4, 3.9 and 3.11 (the "Covered Representations") shall be against the Escrow AccountDeposit held in escrow pursuant to the Escrow Agreement. Notwithstanding anything herein to the contrary, any such amounts payable from except as provided under Section 13.5 and in the Escrow Account and any amounts payable from next sentences, (i) the Stockholder Representative Reserve Equityholders shall have no liability for indemnification pursuant to or for this Article XII until the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid aggregate Losses to the Company, Parent and the Company exceed $25,000 (the "Basket"), at which point the Equityholders shall pay be liable for the applicable recipient full amount of all Losses, and (ii) the amount to which he or she is entitled maximum aggregate liability of the Equityholders hereunder shall not exceed the value (less any applicable withholding taxes, which the Company shall remit determined by reference to the applicable Governmental AuthorityClosing Market Price) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release Escrow Deposit (the "Maximum Indemnification"). With respect to indemnification claims arising under Section 12.1(i) from any inaccuracy in or breach of any Covered Representations, or for Sections 12.1(ii), (iii) or (iv) of this Article XII, neither the Escrow Account or Stockholder Representative Reserve, as applicable) through Basket nor the Company’s payrollMaximum Indemnification limitation shall apply.
Appears in 1 contract
Sources: Merger Agreement (Go2net Inc)
Escrow. At the Closing, Buyer shall transmit (i) Notwithstanding Three Hundred Thousand Dollars ($300,000) (the provisions of Section 2.6(a“Working Capital Escrow Amount”), as security for certain of to be deposited in an account designated by the indemnification Escrow Agent (the “Working Capital Escrow Account”), to satisfy any post-closing adjustment obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable Seller pursuant to Section 2.6(a)1.06, (iii) an amount of cash equal to Fifteen Million Seventy Five Thousand Dollars ($15,000,00075,000) (the “Indemnity Escrow Amount”), to be deposited in an account designated by the Escrow Agent (the “Indemnification Escrow AmountAccount”), to satisfy any post-closing indemnification obligations of Seller pursuant to Article VI and (iiiii) an amount of cash equal to One Million Two Hundred Fifty Thousand Dollars ($1,200,000250,000) (the “Adjustment Performance Escrow Amount”), and (iii) to be deposited in an amount of cash equal to One Million Dollars ($1,000,000) account designated by the Escrow Agent (the “Identified Matters Performance Escrow Amount”, Account,” and collectively together with the Working Capital Escrow Account and the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow AmountAccount, the “Escrow AmountAccounts”), each by wire transfer of immediately available funds, to CIBC Bank USA f/k/a The PrivateBank and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. Trust Company (the “Escrow Agent”). The , to be held by the Escrow Amount shall be released to the Parties according Agent pursuant to the terms and conditions of an escrow agreement dated substantially in the form attached hereto as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative Exhibit B (the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) . The Escrow Accounts shall be interest-bearing accounts. All fees and costs associated with the Escrow Agreement and the Escrow Agent (the “Documentation Escrow AmountAgreement Expenses”) shall be allocated from paid fifty percent (50%) by Buyer and fifty percent (50%) by Seller. To the Indemnification extent there is any conflict between this Agreement and the Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount Agreement in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance mechanics for distribution of the Indemnification Working Capital Escrow Amount or the Indemnity Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payrollAgreement will control.
Appears in 1 contract
Sources: Asset Purchase Agreement (High Wire Networks, Inc.)
Escrow. (ia) Notwithstanding Prior to or simultaneously with the provisions Effective Time, AIT and Parent shall enter into an escrow agreement with JPMorgan Chase Bank, NA (the “Escrow Agent”) substantially in the form of Section 2.6(aExhibit A hereto (the “Escrow Agreement”), as security for certain of . At the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction DocumentsEffective Time, Parent shall retain withhold from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) and deposit with the Escrow Agent an amount of in cash equal to Fifteen Million Dollars the Escrow Cash Holdback plus the Closing Adjustment Holdback and one or more certificates representing the Escrow Stock Holdback ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amounttogether, the “Escrow AmountFund”), and shall deposit such amounts at Closing into to be held in an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to governed by the terms and conditions of an escrow agreement dated as of the Closing Date by this Agreement and among the Escrow Agent, Parent Agreement and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith managed by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”).
(b) The Escrow Fund shall constitute security solely for (i) adjustments to the Merger Consideration pursuant to Section 2.09 and (ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses indemnification obligations of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made AIT pursuant to Article IX.
12, and shall be held in and distributed from the Escrow Account in accordance with the provisions of this Agreement and the Escrow Agreement. The Escrow Agreement shall provide that any amount of the Closing Adjustment Holdback remaining in the Escrow Account following either (iiii) Eighteen the payment to Parent of the Final Closing Adjustment Payment pursuant to Section 2.09, or (18ii) the final determination pursuant to Section 2.09 that no such Final Closing Adjustment Payment is owed to Parent, shall be released to AIT subject to this Agreement and the Escrow Agreement. The Escrow Agreement shall also provide that any amount of the Escrow Holdback remaining in the Escrow Account, and not the subject of a claim duly and timely made in accordance with Article 12 hereof, on the date that is fifteen (15) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, AIT subject to the terms this Agreement, including Section 12.01 hereof, and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Escrow. (ia) Notwithstanding Parent and Key Employee each agree to enter into the provisions Escrow Agreement at or before the Effective Time.
(b) On the second anniversary of Section 2.6(athe Effective Time (or, if that day is not a Business Day, on the first Business Day thereafter), as security for certain unless the Escrow Agent shall theretofore have received a written notice from Parent pursuant to Section 4(c) or 4(d) of this Agreement, the Escrow Agent shall pay 100% of the indemnification obligations Retention Amount to Key Employee, without any further need for instruction from Parent, and Parent shall cease to have any further claims to, or rights or interests in, such portion of the Executing StockholdersRetention Amount so paid to Key Employee, effective upon such payment.
(c) Upon any lapse of the Executing Option Holders and Non-Owner Participants set forth in Restriction pursuant to Section 3(d) of this Agreement and the other Transaction DocumentsAgreement, Parent shall retain from the Merger Consideration otherwise deliverable pursuant deliver a written notice to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the Escrow Agent, with a copy thereof to Key Employee, instructing the Escrow Agent to pay the Retention Amount to Key Employee (or, in the case of Key Employee’s death, to his estate) in accordance with the Escrow Agreement, and Parent and the Stockholder Representative on behalf of the Executing Stockholdersshall immediately cease to have any further claims to, or rights or interests in, the Executing Option Holders and Non-Owner ParticipantsRetention Amount.
(d) Upon any forfeiture by Key Employee with respect to the Unvested Retention Amount as provided in Section 3(b), in Parent shall deliver a reasonable form mutually agreed upon in good faith by written notice to the Escrow Agent, with a copy thereof to Key Employee, instructing the Escrow Agent to pay the Unvested Retention Amount to Parent and in accordance with the Stockholder Representative (the “Escrow Agreement”, and Key Employee shall immediately cease to have any further claims to, or rights or interests in, the Unvested Retention Amount.
(e) Neither party shall give any instructions to the Escrow Agent except as expressly provided in Sections 4(b), 4(c) and 4(d) (other than any joint instructions as to which both parties may agree in writing).
(iif) An amount equal to Five Million Dollars ($5,000,000) (Neither the “Documentation Escrow Amount”) Retention Amount held in escrow nor any interest or right therein or part thereof shall be allocated from liable for the Indemnification Escrow Amount debts, contracts, or engagements of Key Employee or his successors in interest or shall be subject to address Losses disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means, whether such disposition be voluntary or involuntary or by operation of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (“Documentation Matters”including bankruptcy), and any attempted disposition thereof shall be null and void and without effect, ab initio; provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to this Section 2.7(b)4(f) shall be released to not prohibit any transfer of Key Employee’s rights and interests hereunder by will or the Stockholder Representative (or its designee) for the benefit laws of the Executing Stockholders, the Executing Option Holders descent and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreementdistribution.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Escrow. At the Closing the parties shall deposit $1,200,000 in cash (isuch cash, together with all earnings thereon is referred to as the “Escrow Cash”) Notwithstanding the provisions of Section 2.6(a), as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain deducted from the total Merger Consideration otherwise deliverable pursuant payable to Section 2.6(a)each of the Company’s shareholders on a pro-rata basis, in an escrow account (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) to be held in such Indemnification Escrow Agreement during the period ending two (2) years from the Effective Date (“Escrow Period”), pursuant to the terms of an escrow agreement (“Escrow Agreement”) negotiated prior to the Closing by ProMed Pomona, the Representative (as defined in Section 1.16 (a) and Group, with U.S. Bank, N.A. an escrow agent mutually acceptable to the parties (the “Escrow Agent”). The Indemnification Escrow Amount shall be released provide a source of funds for the indemnity obligations set forth in Section 7.2(a) of this Agreement and, to the Parties according to extent provided in Section 7.6, the terms and conditions of an escrow agreement dated as indemnity obligations set forth in Section 7.2(a) of the Closing Date by agreement and among plan of reorganization for the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative ProMed Company Acquisition (the “Escrow ProMed Company Acquisition Agreement”).
. The Indemnification Escrow Account established pursuant to this Section 1.15 and the indemnification escrow account established pursuant to Section 1.15 of the ProMed Company Acquisition Agreement shall be collectively referred to as the “Indemnification Escrow Fund”. Except for those claims set forth in Sections 7.2(b) and Section 7.4 of the Agreement and Sections 7.2(b) and 7.4 of the ProMed Company Acquisition Agreement, the Indemnification Escrow Fund shall be the exclusive source of indemnity funds for claims of Group, Group Subsidiary, Holdings, and Surviving Corporation or their respective directors, officers, employees, agents and affiliates. Subject to Article 7, (i) on the first business day following the first anniversary of the Effective Date, the Escrow Agent shall deliver 25% of the Escrow Cash in the Indemnification Escrow Account, less any such amounts applied in satisfaction of a claim for indemnification and any amounts reserved against pending claims related to the indemnification obligations set forth in Article 7 and claims related to the indemnification obligations in the ProMed Company Acquisition, to each of ProMed Pomona’s former shareholders, after giving effect to the Merger (“Former Shareholders”) in the same proportions as initially deposited in the Indemnification Escrow Account, and (ii) An amount equal to Five Million Dollars ($5,000,000) (on the “Documentation first business day following the conclusion of the Escrow Amount”) Period, the Escrow Agent shall be allocated from deliver the remaining Escrow Cash in the Indemnification Escrow Amount Account, less any such amounts applied in satisfaction of a claim for indemnification and any amounts reserved against pending claims related to address Losses the indemnification obligations set forth in Article 7 and claims related to the indemnification obligations in the ProMed Company Acquisition, to each of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Former Shareholders in the same proportions as initially deposited in the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IXAccount.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Prospect Medical Holdings Inc)
Escrow. (i) Notwithstanding At least one Business Day prior to the provisions First Closing Date, each Buyer shall promptly cause a wire transfer of Section 2.6(a), as security for certain immediately available funds (U.S. dollars) in an amount representing the total of the indemnification obligations amounts set forth opposite each Buyer’s name in Columns (3) and (4) of the Executing StockholdersSchedule of Buyers, to be paid to an escrow account of ▇▇▇▇▇ Fargo, National Association, in its capacity as escrow agent under the Executing Option Holders and Non-Owner Participants set forth Escrow Agreement (in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) (the “Indemnification Escrow Amount”), (ii) an amount of cash equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Adjustment Escrow Amount”)such capacity, and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”including any successor escrow agent, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amount, the “Escrow Amount”), and shall deposit such amounts at Closing into an account or accounts (the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow Agent”). The Escrow Amount shall aggregate amount to be released to the Parties according to the terms and conditions of an held in escrow agreement dated as of the Closing Date by and among the Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (Agent is referred to herein as the “Escrow Agreement”).
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) . The Escrow Agent shall be allocated from hold the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to escrow in accordance with the terms and conditions as set forth in of the Escrow Agreement.
(ivii) Thirty-six With respect to each Closing, the Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to the Escrow Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the earlier of: (36x) months following the Closing DateDate to which such Escrow Amount applies, the then-remaining balance of the Documentation in which case, such Escrow Amount shall be released distributed in accordance with Section 1(a) or Section 1(b), as the case may be; or (y) the Escrow Termination Date (as defined below), in which case any remaining Escrow Amount shall be returned to the Stockholder Representative (or its designee) for Buyers in accordance with their written wire transfer instructions delivered to the benefit Escrow Agent. In the case of the Executing StockholdersEscrow Termination Date, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in if the Escrow Agreement.
(v) Upon Agent has not received written wire transfer instructions from any Buyer before the earlier of 30th day after the Escrow Termination Date, then the Escrow Agent may, in its sole and absolute discretion, either (A) five (5) years following deposit that portion of the Closing Date Escrow Amount to be returned to such Buyer in a court of competent jurisdiction on written notice to such Buyer and the Escrow Agent shall thereafter have no further liability with respect to such deposited funds, or (B) the final resolution and settlement of all matters and Actions related continue to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each hold such Person’s Pro Rata Share portion of the Escrow Account. Notwithstanding anything herein to Amount pending receipt of written wire transfer instructions from such Buyer or an order from a court of competent jurisdiction, and in case of clauses (A) and (B), the contrary, any such amounts payable from fees and expenses of the Escrow Account and any amounts payable Agent may be deducted from such portion of the Stockholder Representative Reserve to or Escrow Amount. The “Escrow Termination Date” shall be the date on which this Agreement terminates under Section 9 hereof, which shall include, for the benefit avoidance of an Executing Stockholderdoubt, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, any Bankruptcy Event (as applicabledefined in Section 9(d) through the Company’s payrollhereof).
Appears in 1 contract
Escrow. (i) Notwithstanding Supplier shall, promptly after the provisions of Section 2.6(a)Effective Date, as security for certain of the indemnification obligations of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants set forth in this Agreement and the other Transaction Documents, Parent shall retain from the Merger Consideration otherwise deliverable pursuant to Section 2.6(a), (i) an amount of cash equal to Fifteen Million Dollars ($15,000,000) deposit into escrow (the “Indemnification Escrow AmountEscrow”) the Source Code for any Software embedded in, or used in connection with the development of, the Products (including the back-end), in each case owned by Supplier or its Subsidiaries, along with any related documentation and materials (iiincluding Technical Manufacturing Information and Product Information) an amount of cash equal to One Million Two Hundred Thousand Dollars and any Software comprised in the ▇▇▇▇ IP ($1,200,000) (the “Adjustment Escrow Amount”), and (iii) an amount of cash equal to One Million Dollars ($1,000,000) (the “Identified Matters Escrow Amount”, and collectively with the Indemnification Escrow Amount, the Adjustment Escrow Amount and, if applicable pursuant to Section 7.16, the JV Buyout Escrow Amountcollectively, the “Escrow AmountMaterials”). Supplier will, from time to time, provide Customer with a list of all third-party Software embedded in the Escrow Materials and required to use the Escrow Materials. Supplier agrees, during the term of this Agreement, to deposit into such Escrows (on a quarterly basis and for every major new release or similar item, in each case within ten (10) days thereof) any updates to the Escrow Materials. The agreed escrow agreement for any Escrow Materials in the ▇▇▇▇ Catalog Products is set forth on Schedule 9.13 hereof. The Parties agree that the Escrow agreement for any Escrow Materials in the Verisure Developed Products will be entered into upon the completion of the first SOW entered into by the Parties and will have terms substantially similar to the agreement on Schedule 9.13. The Escrow agreements will be deemed “supplementary to” this Agreement for purposes of bankruptcy law. The conditions for release of Escrow shall deposit be limited to the occurrence of a Late Stability Triggering Event or, in respect of Verisure Developed Products, the occurrence of a Supply [***] = CERTAIN CONFIDENTIAL INFORMATION OMITTED Triggering Event or the termination of this Agreement (other than a termination under Section 11.03(d); and provided, further, that Customer’s access to any ▇▇▇▇ IP in the ▇▇▇▇ ▇▇▇▇▇ Services applies only in respect of a Late Stability Triggering Event). Customer will pay for the reasonable and documented fees of the Escrow agent (reasonably acceptable to Customer) and for the expense of one employee solely dedicated to fulfilling Customer’s obligations under this Section 9.13 (provided, Supplier shall have received Customer’s prior written consent for any such amounts at Closing into an account fees and or accounts expenses) (collectively, the “Escrow Account”) with U.S. Bank, N.A. (the “Escrow AgentCosts”). The Escrow Amount During the period in which Supplier is in material breach of its obligations under this Section 9.13 or the separate escrow agreement, Supplier shall be released to the Parties according to the terms and conditions of an escrow agreement dated as of the Closing Date by and among the liable for any Escrow Agent, Parent and the Stockholder Representative on behalf of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, in a reasonable form mutually agreed upon in good faith by the Escrow Agent, Parent and the Stockholder Representative (the “Escrow Agreement”)Costs.
(ii) An amount equal to Five Million Dollars ($5,000,000) (the “Documentation Escrow Amount”) shall be allocated from the Indemnification Escrow Amount to address Losses of Parent Indemnified Parties that result from a Target Entity’s failure to comply with Legal Requirements regarding patient medical record documentation prior to Closing (“Documentation Matters”); provided, however, that nothing contained herein shall prevent a Parent Indemnified Party’s recovery from the Indemnification Escrow Amount in respect of indemnification claims made pursuant to Article IX.
(iii) Eighteen (18) months following the Closing Date, the then-remaining balance of the Indemnification Escrow Amount, less the Documentation Escrow Amount, shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(iv) Thirty-six (36) months following the Closing Date, the then-remaining balance of the Documentation Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(v) Upon the earlier of (A) five (5) years following the Closing Date or (B) the final resolution and settlement of all matters and Actions related to the Identified Matters, the then-remaining balance of the Identified Matters Escrow Amount shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vi) On the Adjustment Payment Date, the then-remaining balance of the Adjustment Escrow Amount (after deducting the net amount, if any, that is payable to Parent pursuant to Section 2.7(b)) shall be released to the Stockholder Representative (or its designee) for the benefit of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants, subject to the terms and conditions as set forth in the Escrow Agreement.
(vii) If applicable, the then-remaining balance of the JV Buyout Escrow Amount shall be paid or released in accordance with Section 7.16, subject to the terms and conditions as set forth in the Escrow Agreement.
(viii) When paid in accordance with Section 2.6(c)(iv), Parent shall be deemed to have contributed on behalf of each Executing Stockholder, each Executing Option Holder and each Non-Owner Participant, each such Person’s Pro Rata Share of the Escrow Account. Notwithstanding anything herein to the contrary, any such amounts payable from the Escrow Account and any amounts payable from the Stockholder Representative Reserve to or for the benefit of an Executing Stockholder, Executing Option Holder or Non-Owner Participant who is employed by a Target Entity prior to or following the Closing Date shall be paid to the Company, and the Company shall pay the applicable recipient the amount to which he or she is entitled (less any applicable withholding taxes, which the Company shall remit to the applicable Governmental Authority) as soon as practicable (but in no event later than the Company’s next payroll date after the date of the release from the Escrow Account or Stockholder Representative Reserve, as applicable) through the Company’s payroll.
Appears in 1 contract